F LED. MAY 15) 9ODO clerw OF COURT SUPREME COURT OF OHIO IN THE SUPREME COURT OF OHIO. State of Ohio,

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1 IN THE SUPREME COURT OF OHIO State of Ohio, Appellee, V. Katherine M. Kosier, ) On Appeal from the ) Court of Appeals of Lucas County, Ohio ) ) Sixth Appellate District Appellant ) Case No. L MEMORANDUM IN SUPPORT OF JURISDICTION MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT KATHERINE M. KOSIER Mark D. Tolles ( ) 920 North Main Street Bowling Green, Ohio Telephone: (419) Fax No.: (419) tolleslaw@dacor.net COUNSEL FOR APPELLANT, Katherine M. Kosier John B. Arnsby, Maumee City Prosecutor Raymond A. Runner, Maumee Assistant City Prosecutor 400 Conant Street Maumee, Ohio Telephone :(419) Fax No.: (419) F LED MAY 15) 9ODO clerw OF COURT SUPREME COURT OF OHIO COUNSEL FOR APPELLEE, STATE OF OHIO

2 TABLE OF CONTENTS EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION STATEMENT OF THE CASE AND FACTS ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW Proaosition of Law No. 1: A school bus driver must allow traffic approaching from the other direction which is within such close proximity to the school bus that it could not stop at least ten feet in front of the bus to clear before turning on the flashing red lights under OAC (F) Proposition of Law No. 2: Evidence that an oncoming vehicle is ten feet from a school bus at the time that the red flashing lights are activated is not sufflcient to sustain a conviction for a violation of O.R.C CONCLUSION...7 CERTIFICATE OF SERVICE APPENDIX Appx. Page Decision and Judgment Entry of the Lucas County Court of Appeals. (March 31, 2008)... 1 Bowling Green v. Kilpatrick, (Decided January 25, 1991) Court of Appeals of Wood County, Ohio, Sixth Appellate District, unreported ii

3 EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION This cause presents two critical issues for the future of traffic law enforcement and the safety of school children on buses in Ohio: they are, whether a school bus driver must comply with the provisions of Ohio Administrative Code (C)(5) and (F), and whether the testimony of a bus driver indicating that the oncoming vehicle was ten feet from the bus at the time of the turning on the red flashing lights is sufficient to convict a driver of failing to stop her vehicle under the provisions of The provisions of the OAC (F) require that school bus driver be the only operator of the service entrance door on the bus, and that the "door shall not be opened to load or unload pupils until traffic has cleared the bus or come to a complete stop in all directions." OAC (C)(5) provides the procedure for tuming on the red flashing lights for the bus; "Open the service door to actuate the warning lights..." The interpretation of this provision of the OAC involves great public interest in that it deals with the issue of the safety of school children boarding or exiting school buses on public highways. The reason for placing warning lights on the school buses is to protect the children getting on or off buses from hazards associated with being in close proximity to a highway containing other vehicular traffic. There are two ways that the regulations for the drivers protect the children. The first and most obvious reason is to stop traffic before children enter the roadway or come into close proximity thereto of a highway, either going to or from a school bus. The second reason for the rules is to be sure that the other vehicles in the roadway are not forced into making a decision of stopping too quickly, which could result in a loss of control of their vehicle, with a heightened possibility of a crash 1

4 with the school bus. The second issue in this action is somewhat related to the first, but deals with the sufficiency of evidence where the witnesses presented by the state indicated that the Appellant's vehicle was too close to the bus at the time the red flashing lights were turned on to stop within the human reaction time. The issue is whether a bus driver can turn on the red flashing lights without regard to whether the oncoming vehicle is either within the ten foot safety zone in front of the bus, or so close that it could not stop until it had entered that zone. This is important because in while passing a stopped school bus is a very serious offense, with a great potential for personal injury to a child, it is an offense which is generally prosecuted based upon the word of the bus driver, with no police officer observing the driving. As such, the bus drivers should be aware of the language of the statute, as well as the application and interpretation, when making accusations that a traffic violation has occurred. 2

5 STATEMENT OF THE CASE AND FACTS The case arises from the citation of appellant Katherine M. Kosier for theft, in violation of Ohio Revised Code On March 1, 2007, Appellant was eastbound on Ohio Route 64 in Lucas County, Ohio. She approached a westbound school bus. When she had passed the bus, slie noticed that the buses rear red lights were flashing, and that the side mounted stop sign was being extended, which indicated to her that the red lights had just been turned on.. The next day, Appellant was contacted by Trooper Eric Gonzalez of the Ohio State Highway Patrol. He asked her about her trip the previous afternoon, and asked what she remembered about a school bus. She advised him that she had passed a bus on Ohio Route 64, within a short distance of her driveway, and that the lights were not flashing, nor was the bus stopped when she went by it. She was issued a citation for passing a school bus, and summoned into the Maumee Municipal Court. At trial, the State presented two witnesses, the bus driver, and the trooper. The bus driver testified that as she was approaching the stop, and when the oncoming vehicle was ten feet away, she put on her emergency brake, which activated her red flashing lights. She indicated that she saw the vehicle in her mirror after it went past the front of the bus. The driver testified under cross examination that she was familiar with the rules for commercial drivers licenses as they applied to school busses, and that she followed those rules. Trooper Gonzalez testified that at a speed of ten mile per hour, a vehicle would travel 28 feet in the time that elapsed between the turning on of the red lights and the time that the driver of the other vehicle would begin braking, based upon a 1.5 second total reaction and action time. 3

6 Appellant testified that as is indicated in the first paragraph of this Statement of the Case and Facts. Testimony was also presented by the school district's head bus mechanic as to the height of the extending stop sign from the left side of the bus. Appellant's husband testified to the height of the vehicle. At the conclusion of the trial, the trial court found Defendant guilty. A timely appeal was taken to the Court of Appeals of Lucas County, Sixth Appellate District. In deciding this case on appeal, the court of appeals found that the Appellant was following the bus and overtook and passed it. This was contrary to the facts presented at trial, and needs to be addressed herein. If there facts of this case did indicate that Appellant was following the bus, and overtook it, then there could be some basis for their holding, based upon the assured clear distance ahead statute, or following too closely, or even failing to sound a horn when overtaking and passing another vehicle. But the testimony of the witnesses was that these two vehicles approached each other, from opposite directions. 4

7 ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW Proposition of Law No. 1: A school bus driver must allow traffic approaching from the other direction which is within such close proximity to the school bus that it could not stop at least ten feet in front of the bus to clear before turning on the flashing red lights under OAC (F). Under the provisions of OAC (F), a school bus driver shall not open the door on the bus until traffic has cleared so as to protect the children on the bus, as well as the motoring public. In the testimony presented in this case by the State, it was clear that the driver turned on the red flashing warning lights when the approaching vehicle was ten feet away. This meant that when the trooper testified that even at a slow speed of ten miles per hour, the approaching vehicle would travel 28 feet during the average human reaction time. This would put the front of the oncoming vehicle about 18 feet behind the bus's front bumper. So the bus driver had a duty to allow this vehicle to clear the bus before turning on the red lights. hi looking at the issue of whether there was a effect of the bus having on its yellow flashing lights, in Bowling Green v. Kilpatrick, (Decided January 25, 1991) Court of Appeals of Wood County, Ohio, Sixth Appellate District, unreported, it was held that the yellow traffic light did not prevent a vehicle from entering an intersection, and if a vehicle entered the intersection on a yellow light, that vehicle could clear the intersection, even in the event the traffic light changed to red after the vehicle entered the intersection. From either a legal or a safety point of view, it would be wise to maintain continuity between these statutes. Requiring the bus driver to allow the oncoming close traffic to clear serves to prevent the oncoming motorist from either accelerating rapidly to pass the bus prior to the lighting of the red flashing lights, or from applying the brakes with such force as to cause losing control of the vehicle and creating the possibility of a crash. As such this Court should 5

8 require that the school bus drivers comply with this provision of the OAC. Proposition of Law No. 2: Evidence that an oncoming vehicle is ten feet from a school bus at the time that the red flashing lights are activated is not sufficient to sustain a conviction for a violation of O.R.C In this case, the testimony of the prosecution witnesses indicated that the Appellant was ten feet from the school bus when the red flashing lights came on. With the vehicle that close, it could not have stopped at least ten feet from the school bus, as is required by O.R.C When the trooper, who was not present at the time of the alleged violation, was questioned as to the distance and time needed to account for human reaction time, he testified that in the event Appellant's vehicle was traveling at only ten mile per hour, it would travel 28 feet before a driver with nonnal reaction time would be able to apply the brakes. He based this upon a total human reaction time of 1.5 seconds. It is well settled that the law will not require a futile act. It is clear from the state's evidence that the vehicle could not stop at least ten feet away from the bus if it was ten feet away when the red flashing lights were turned on. Appellant could not make the stop, and at the distance she was from the bus, may not have even been able to recognize the red lights going. As her speed increased, the distance traveled during the reaction time would also increase. If she were going 20 mile per hour, she would travel 56 feet before being able to apply the brake, and at that speed, she would travel 28 feet before recognizing that the red lights were flashing. This would put her already past the front of the bus. 6

9 CONCLUSION For the reasons discussed above, this case involves matters of public and great general interest and a substantial constitutional question. The appellant requests that this court accept jurisdiction in this case so that the important issues presented will be reviewed on the merits. Respectfully submitted, IVlarkLPS. Tolles COUNSEL F R APPELLANT, Katherine M. Kosier 7

10 CERTIFICATE OF SERVICE I certify that a copy of this Memorandum in Support of Jurisdiction was sent by ordinary U.S. mail to counsel for appellee, John B. Arnsby, Maumee City Prosecutor, at 400 Conant Street, Maumee, Ohio on May 14, ar. olles COUNSEL FOR APPELLANT, Katherine M. Kosier 8

11 TILED C COURT OF appe^l 109 {:._.F, { n, IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCASCOUNTY Statc of Ohio Appellee Court of Appeals No. L Trial Court No. 07TRD01272-A V. Katherine M. Kosier DECISION AND JUDGMENT ENTRY Appellant Decided: MAR ^^*+* Mark D. Tolles, for appellant. *^*^* SINGER, J. { 1} Appellant, Katherine Kosier, appeals from her conviction in the Maurnee Municipal Court for failing to stop for a school bus, a violation of R.C For the reasons that follow, we affirm the judgment of the trial court. { 2) A trial commenced on July 16, Tonya Sheldrick testified that she is a school bus driver for the Anthony Wayne School District. At around 2:45 p.m. on March 1, 2007, she was driving a school bus and attempting to mal<e a stop when she E-JOURNALGZED MAR 3 1 2onF

12 noticed a car behind her. She stopped the bus and pulled the emergency brake which automatically activates flashing red lights and triggers the opening of a stop sign signaling surrounding traffic to stop. While she was stopped, shc blew her horn as she watched the car behind her drive past her. Sheldrick testified that she then called her employer and reported that a light green Kia automobile with a tinted back window, being driven by a lady with blonde hair, had just failed to stop for her school bus. Another bus driver behind Sheldrick was able to record a license plate for the Kia. { 3} Ohio State Highway Patrolman Eric Gonzales testified that he traced the license plate number to appellant's house. In her driveway he saw a light green Kia with a tinted back window. Gonzales went to appellant's door and told her he had received a school bus coinplaint. Appellant told him that she passed the bus when the yellow lights were blinking and that she never saw red blinking lights or the stop sign before she passed the bus. { 4} Appellant took the stand and testified that she was 100 percent sure that the school bus lights were blinking yellow when she drove past it. {1( 5} The trial court found appellant guilty, She now appeals setting forth the following assignment of error: { 6} "The trial court erred in finding defendant appellant guilty of the offense of stopping for school bus, in violation of'o.r.c where the evidence presented at trial did not show that the vehicle could stop at least ten feet before the bus when it stopped for discharging a school child." 2.

13 { 7) R.C states in pertinent part: { 8} "The driver of a vehicle, streetcar, or trackless trolley upon meeting or overtaking from either direction any school bus stopped for the purpose of receiving or discharging any school child, person attending programs offered by community boards of mental health and county boards of inental retardation and developtnental disabilities, or child attending a program offered by a head start agency, shall stop at least ten feet from the front or rear of the school bus and shall not proceed until such school bus resumes motion, or until signaled by the school bus driver to proceed." (191 Appellant contends that the evidence showed that appellant was already ten feet away at the time that the school bus stopped and, therefore, appellant could not stop at least ten feet away. Sheldrick testified that appellant was ten to twenty feet behind her when she activated her red lights and extended the stop sign. Appellant testified that the stop sigu was not extended until after she had passed the school bus. { 10) The issue here is one of credibility. The trier of fact is in best position to weigh the evidence and determine the credibility of the witnesses before him. See State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. Because the judge in this cause was the trier of fact and found the testimony of Sheldrick more credible than that of appellant on the question of whether appellant failed to stop for a school bus, we shall not disturb the trial court's determination. Appellant's assigninent of error is found not well-taken. 3.

14 { 11} The judgment of the Maumee Municipal Court is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment for the clerk's expense incurred in preparation of the record, fees allowed by law, and the fee for filing the appeal is awarded to Lucas County. JUDGMENT APPIRMED. A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4. Mark L. Pietrykowski, P.J. Arlene Singer, J. Thotnas J. Osowik, J. CONCUR. This decision is subject to further editing by the Supreme Court of Ohio's Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court's web site at: 4.