 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Columbus v. Brown11/17/2005
t claims show there were no fatalities to others caused by alcohol-impaired bicycle riders for 2003-2004, and only two alcohol-related bicycle accidents resulting in the death of the bicycle rider for the same period.
{ } We initially note that appellant's first argument was not raised before the trial court. Before the trial court, appellant's counsel argued:
The case law says that while deference should be given to the legislature, that there has to be a rational basis between the problem that they're trying to solve and the statute that is written for that purpose. Obviously, the problem they're trying to solve by the Ohio statute is the carnage on the roads, the death, injury and property damage, and also to punish and restrict those who violate that law. And those purposes, we believe, are not served by the statute reading as broadly as it does, to include the guy that's on a riding mower in his backyard; the person, for that matter, in a wheelchair inside his house. The person in a travel trailer that's capable of being drawn on the highway, even if it's at a camp site and unhooked from the truck that pulls it, could still qualify as a vehicle under the OVI statute, as could this bicycle. * * * From this excerpt, it is apparent appellant never argued before the trial court that the mandatory minimum penalty for operating a bicycle under the influence is not proportional to the crime. Although errors not raised before the trial court are typically deemed waived on appeal, Crim.R. 52(B) provides that the court may consider errors affecting substantial rights even though they were not brought to the attention of the trial court. Plain error is an obvious error that affects a substantial right. State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, at , citing State v. Keith (1997), 79 Ohio St.3d 514, 518. "Notice of plain error is taken with utmost caution only under exceptional circumstances and only when necessary to prevent a manifest miscarriage of justice." State v. Martin, Franklin App. No. 02AP-33, 2002-Ohio-4769, at .
{ } Although slightly different, the second due process argument appellant asserts before this court is sufficiently similar to his argument before the trial court to avoid the application of the plain error doctrine. What appellant essentially asserts in this argument is that including a bicycle as a vehicle to which the OVI code section applies violates his due process rights because the wrong the legislature was trying to address is not protected by the inclusion of bicycles as a vehicle.
{ } A statute challenged on due process grounds, which does not bear upon a fundamental right or suspect class, will be deemed valid if it is rationally related to a legitimate governmental purpose. State v. Runnels (1989), 56 Ohio App.3d 120, 122-123. Here, appellant does not claim the statute bears upon a fundamental right or suspect class. Therefore, the present statute will be found constitutionally valid if it: (1) bears a real and substantial relation to the public health, safety, morals or general welfare of the public; and (2) if it is not unreasonable or arbitrary. See Mominee v. Scherbarth (1986), 28 Ohio St.3d 270. Under rational basis review, a statute will be upheld unless it is "wholly irrelevant to achievement of the state's purpose." (Emphasis sic.) Menefee v. Queen City Metro (1990), 49 Ohio St.3d 27, 29.
{ } The problem with both of appellant's due process contentions is that, as mentioned earlier, appellant's arguments before this court are supported by numerous statistics and attachments from the publication "Ohio Traffic Crash Facts." Appellant never offered any of these statistics or submitted any of this documentary evid
Page 1 2 3 4 Ohio DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|