Is the speed you travel in a vehicle an absolute or can it vary and exceed the set legal limits by facts and circumstances?
The City of Willoughby v. Hugebeck, 2 Ohio App. 2d 36 - Ohio: Court of Appeals 1964, is about a traffic ticket affidavit that does not charge an offense.
The Court stated;
"The prosecution also argues that since defendant understood what he was charged with and was in no respect misled, the affidavit was sufficient. This begs the question. Certainly defendant could understand that he was charged with driving fifty miles an hour in a twenty-five mile zone. We cannot agree that from this he was also apprised of the fact that such speed was considered unreasonably fast. Considered that the time of occurrence was between four and five a. m., that the evidence would (and did) disclose that there was little or no other traffic on the road, that Lake Shore Drive at this point is a through street (City of Cleveland Heights v. Woodle, 176 Ohio St. 113), and that while the area in question is zoned for business, there is considerable doubt that actual occupancy was sufficient to qualify it as a "business district" under Section 4511.01 (LL), Revised Code, or even as an "urban district" within the meaning of Section 4511.01 (NN), Revised Code, we doubt that defendant could be said to be aware that a speed of fifty miles an hour at the time and place was unreasonable. On the contrary he was actually informed by a check in one of the boxes that he was driving "over limit" by more than fifteen miles per hour. Since there is no fixed speed limit in Ohio (other than on the Turnpike) any well informed citizen, as well as the court, would know that he was charged with a nonexistent offense, although admittedly the facts on which the prosecution relied to convict him were fully disclosed on the ticket. We find the ticket affidavit used in this case defective in the respects claimed by defendant.
Additionally;
In State v. Schultz, 1 Ohio Misc. 81 - Ohio: Municipal Court 1964 the court stated,
"First, in the State of Ohio, under the provisions of Section 4511.21, Revised Code, there is no fixed speed limit. In this regard see Robinson v. Ferguson, 105 Ohio App. 31; Tenhunfeldt v. Parkway Taxi Cab Co., 105 Ohio App. 425."
Moreover;
In State v. Hamad, 2009 Ohio 3693 - Ohio: Court of Appeals, 9th Appellate Dist. 2009
The Ohio Supreme Court has held:
"What is `reasonable and proper under the circumstances,' within the meaning of R.C. 4511.21, is a question of fact. Where there is sufficient evidence to support a finding of guilty, a conviction will not be set aside." State v. Neff (1975), 41 Ohio St.2d 17, 18.
{¶12} In regard to the rebuttable presumption, this Court has stated:
"Where a statutory presumption is present in a criminal case, the trier of facts must consider and weigh the prima facie evidence adduced, and after such reflection may determine whether the evidence is sufficient to establish the fact of guilt beyond a reasonable doubt. The trier of the facts may determine that the prima facie evidence, alone, is sufficient to establish a fact. However, the trier of the facts is not required to make such determination and may be swayed by other evidence or by the facts and circumstances of a case.
"***
"Either party may introduce evidence to either bolster or rebut the presumption set forth in the statute or ordinance. A fact finder must weigh any evidence introduced ***. The amount of evidence needed to counter the presumption is only that amount necessary to combat the state's ability to prove its case beyond a reasonable doubt.
"The degree of proof necessary to remove a presumption is not to be confused with the degree necessary to sustain the burden of proof. When a party is not required to sustain the burden of proof upon some particular issue, a rebuttable presumption arising out of such issue may be overcome by evidence which counterbalances the evidence to sustain the presumption; however, when such party is required to assume the burden of proof upon an issue, any rebuttable presumption arising therefrom must be removed by the same degree of proof necessary to sustain the issue." (Internal citations and quotations omitted.) In re Zindle at 347-48.
ALSO in: Bellville v. Kieffaber, 114 Ohio St. 3d 124 - Ohio: Supreme Court 2007 the Supreme Court stated;
Because Kieffaber's appeal questions the evidentiary burden of production by the village, Cleveland v. Keah (1952), 157 Ohio St. 331, 47 O.O. 195, 105 N.E.2d 402, is implicated. In Keah, this court discussed whether a speed greater than that specified in a municipal ordinance established unlawful conduct per se or a prima facie case. In the first paragraph of the syllabus, we held:
{¶ 17} "Where a municipal ordinance makes it prima facie unlawful for a motor vehicle to exceed a certain speed limit in a described locality, a speed greater than that specified does not establish the commission of an offense or constitute unlawful conduct per se, but establishes only a prima facie case under the ordinance. Such a provision as to speed is merely a rule of evidence raising a rebuttable presumption which may be overcome by evidence showing that in the circumstances the speed was neither excessive nor unreasonable."
Kieffaber failed to produce sufficient evidence to rebut and overcome the village's prima facie case. Id.
{¶ 22} In view of the foregoing, we hold that a citation for speeding that contains notice of the prima facie offense and the basic facts supporting that charge includes all the necessary elements of the offense even if the citation does not also allege that the speed is unreasonable for the existing conditions. The driver may rebut or negate the prima facie case with evidence that the speed was neither excessive nor unreasonable.
LINKS:
Ohio Traffic Ticket History 1 Akron L. Rev. 1 (1967-1968) Ohio Supreme Court's Traffic Court Rules: A Beginning of Procedural Rule-Making, The; France, James G