State v. VarselState v. Varsel
Ralph C. Buss and Frank Krajenke, for appellant.
DECISION AND JUDGMENT
JENSEN, J.
{¶ 1} Following a bench trial, defendant-appellant, Thomas M. Varsel, appeals the court’s verdict finding him guilty of violating
{¶ 2} Thomas Varsel is a resident of Monroe, Michigan. On August 18, 2012, he was stopped by an Ohio Highway Patrol Officer while driving his motorcycle in Fulton County, Ohio. He was issued a citation under
{¶ 3} At trial, Varsel, who worked as a noise vibration harshness technologist for Ford Motor Company, admitted that he was wearing foam earplugs at the time he was stopped. He testified that these earplugs – which he described as “noise reducing hearing protection” – protect his ears against the sound of the wind when he rides his motorcycle. He said that without the earplugs, he experiences a drumming in his ear, which progresses to a ringing as he accelerates, and then further progresses to the point where he cannot hear at all. He explained that with the earplugs in, he is able to hear sirens and traffic noises.
{¶ 4} Eric Healy, Ph.D, provided expert testimony on Varsel’s behalf. Dr. Healy, an Ohio State University professor who teaches hearing science and researches the operation of the auditory system, took measurements of the sound pressure levels resulting from wind noise at various speeds and he assessed the potential for that wind noise to damage human hearing. He determined that at 45 miles per hour, the wind creates a decibel level of 115–a level comparable to that of a jackhammer. At 65 miles per hour, the decibel lеvel rises to 130, roughly the level produced by a jet engine. He
{¶ 5} On cross-examination, Dr. Healy conceded that the best protection against the potential hearing loss caused by the wind noise would be not to drive a motorcycle. Varsel acknowledged that he owns a vehicle other than a motorcycle.
{¶ 6} The court found Varsel guilty, indicating that “the court is impressed with defendant’s case but is not persuaded a constitutional violation occurred.” It imposed a $37.00 fine plus court costs. Varsel appeals that decision and assigns the following errors.
FIRST ASSIGNMENT OF ERROR: THE TRIAL COURT ERRED WHEN IT DID NOT FIND OHIO REVISED CODE SECTION 4511.84 VOID FOR VAGUENESS AND OVERBROAD[.]
SECOND ASSIGNMENT OF ERROR: THE TRIAL COURT ERRED WHEN IT FOUND THE STATUTE NOT A VIOLATION OF THE COMMERCE CLAUSE.
THIRD ASSIGNMENT OF ERROR: THE COURT ERRED WHEN IT FOUND THE EFFECT OF THE STATUE [SIC] NOT A VIOLATION OF APPELLANT’S RIGHT TO MOVEMENT AND TRAVEL[.]
FOURTH ASSIGNMENT OF ERROR: THE COURT ERRED WHEN IT FOUND THE EFFECT OF THE STATUE [SIC] IS NOT A VIOLATION OF APPELLANT’S RIGHT BODILY INTEGRITY [SIC][.]
II. LAW AND ANALYSIS
{¶ 7}
(A) No person shall operate a motor vehicle while wearing earphones over, or earplugs in, both ears. As used in this section, “earphones” means any headset, radio, tape player, or other similar device that provides the listener with radio programs, music, or other recorded information through a device attached to the head and that covers all or a portion of both ears. “Earphones” does not include speakers or other listening devices that are built into protective headgear.
(B) This section does not apply to:
(1) Any person wearing a hearing aid;
(2) Law enforcement personnel while on duty;
(3) Fire department personnel and emergency medical service personnel while on duty;
(4) Any person engaged in thе operation of equipment for use in the maintenance or repair of any highway;
(5) Any person engaged in the operation of refuse collection equipment.
{¶ 9} In Varsel’s second motion, he argued that
{¶ 10} Varsel’s appeal of the trial court’s verdict raises the issues that were previously addressed in his motions to dismiss.
A. First Assignment of Error: Vagueness and Overbreadth
{¶ 11} All legislative enactments enjoy a presumption of constitutiоnality. State v. Dorso, 4 Ohio St.3d 60, 61, 446 N.E.2d 449 (1983). Courts must apply all presumptions and pertinent rules of construction so as to uphold the constitutionality of a challenged
{¶ 12} “Under the tenеts of due process, an ordinance is unconstitutionally vague under a void-for-vagueness analysis when it does not clearly define what acts are prohibited under it.” Viviano v. Sandusky, 2013-Ohio-2813, 991 N.E.2d 1263, ¶ 13 (6th Dist.), citing Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). To survive a challenge under the void-for-vagueness doctrine, the statute must meet three requirements. It must (1) provide fair warning to the ordinary citizen of what conduct is proscribed, (2) preclude arbitrary, capricious, and discriminatory enforcement, and (3) not impinge upon constitutionally protected rights. Id. at ¶ 15, citing Grayned at 108-09.
{¶ 13} Varsel complains that the statute defines “earphones” yet it fails to define “earplugs.” He recognizes that Merriam-Webster defines “earplug” as:
1: an ornament inserted in the lobe of the ear especially to distend it
2: a device of pliable material for insertion into the outer opening of the ear (as to keep out water or deaden sound).
{¶ 14} (http://www.merriam-webster.com/dictionary/earplug, accessed April 22, 2014). However, he claims (1) that he understood what he was wearing to be “hearing protection;” (2) the statute does not define what frequencies are to be filtered out; (3) the statute does not describe what materials an earplug is made of (e.g., wood, cotton, cloth,
{¶ 15} At trial, Varsel made a concentrated effort to avoid using the word “earplugs” and described them instead as “foam hearing protection devices.” They were marked as an exhibit and admitted into evidence, thus we have had occasion to view them. They are two pieces of malleable foam, connected by a plastic string, each about a half of an inch long. One end is slightly larger than the diameter of the opening of an average person’s ear and the diameter gradually becomes slightly larger, forming a triangle appearance. The foam сan be manipulated to fit into the opening of the ear and after it is inserted, the foam expands to close any remaining space. In fact, the “hearing protection devices” are, in our view, precisely what Merriam-Webster describes in the second dictionary definition of “earplug.”
{¶ 16} Turning to the three-part analysis to be applied in a void-for-vagueness challenge, under the first prong, “an ordinance must be comprehensible to a person of ordinary intelligence, to the extent that it would inform such a person of the activities it proscribes.” Viviano, 2013-Ohio-2813, 991 N.E.2d 1263 at ¶ 16. We see no reason why
{¶ 17} Moving to the second prong, “the ordinance must preclude arbitrary, capricious, or discriminatory enforcement. An ordinance cannot leave what constitutes a violаtion open to interpretation by relying on the enforcing body to use ‘common sense.’” Id. at ¶ 18. We find that the language in the statute is precise and leaves no discretion as to its application and enforcement.
{¶ 18} Under the third prong, “it must be determined whether the challenged statutory language unreasonably impinges upon or inhibits fundamental constitutionally protected freedoms.” Cleveland v. Broyles, 83 Ohio Misc.2d 50, 55-56, 679 N.E.2d 66 (Mun. 1996). Certainly, if Varsel’s expert is correct that exposure to wind sound can damage hearing – which seems entirely plausible – Ohio’s law prohibiting drivers from wearing earplugs forces people to make a choice: either refrain from driving a motorcycle or drive your motorcycle while accepting the risk that your hearing may be damaged. But there is no constitutional right to travel by motorcycle and the state has its own sufficiently compelling interest in the restriction: to protect citizens from the possible harm that can be caused by a driver whose ability to perceive the sounds of sirens, traffic, voices, etc. is limited. We therefore find that the statute does not unreasonably impinge on a constitutionally protected right.
{¶ 20} Varsel’s void-for-vagueness and overbreadth arguments fail and we find his first assignment of error not well-taken.
B. Second Assignment of Error: Commerce Clause
{¶ 21} Varsel argues that motorcyclists engage in commerce in the state of Ohio and that the prohibition against allowing motorcyclists to wear earplugs excessively burdens interstate commerce.
{¶ 22} Generally speaking, highway regulation has been left to states and localities. State v. Bradley, 12th Warren No. CA89-09-052, 1990 WL 36720, * 2 (Apr. 2, 1990), citing South Carolina State Highway Dept. v. Barnwell Bros., 303 U.S. 177, 184-185, 58 S.Ct. 510, 82 L.Ed. 734 (1938). The traffic laws they enact must be аpplied both to intrastate and interstate traffic. Id. In determining the validity of a state statute affecting interstate commerce, a balancing analysis must be performed. Id. at * 3. “Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are incidental, it will be upheld unless the burden imposed is clearly excessive in relation to the putative local benefits.” Id., citing Pike v.Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970). The nature of the local public interest will be considered, as will be whether that interest could be promoted with a lesser impact on interstate activities. Id. Where traffic laws are concerned, it has been recognized that there is a substantial state interest in promoting the health, safety and welfare of the citizens of Ohio by reducing the number of highway fatalities. Id. “The local purpose and objective of highway safety far outweighs any incidental burden on interstate сommerce which may be created.” Id.
{¶ 23} In this case, we understand that Varsel believes that the state does not fully appreciate that permitting motorcyclists to wear earplugs would filter out wind sound, allowing them to hear other traffic noises more clearly and reducing hearing damage to riders. Perhaрs he is right that allowing motorcyclists to wear earplugs would be the more provident course. But that is a policy consideration better left to the legislature and it does not render the statute an unconstitutional violation of the commerce clause.
{¶ 24} We find Varsel’s second assignment of error not well-taken.
C. Third Assignment of Error: Right to Movement and Travel
{¶ 25} Varsel next argues that the statute violates his right to movement and travel. We find no merit to this argument. While we do not disagree that Varsel has a right to interstate travel, we disagree that the statute unduly restricts that right. It merely requires that he refrain from wearing earplugs while operating a motor vehicle in this state.
The state has the right under its sovereign power to control automobile traffic by reasonable regulations of the circumstances under which its citizens may be licensed to operate a motor vehicle and to adopt appropriate provisions to insure competence and care on the part of licensees, to protect others using the highways; and any appropriate means adopted does not deny to a person subject to its provisions any constitutional rights under the Constitution of the United States or the state of Ohio. (Internal citations and quotations omitted.)
{¶ 27} In State v. Stuber, 3d Dist. Allen No. 1-02-13, 2002-Ohio-3394, the Third District Court of Appeals held that prohibiting the dеfendant from driving without a valid driver’s license did not prevent him from engaging in interstate travel. The court commented that “[d]riving a motor vehicle on a public roadway is only one form of travel” and that appellant was free to travel by “walking, running, taking a bus, a train, a
{¶ 28} We find his third assignment of error not well-taken.
D. Fourth Assignment of Error: Right to Bodily Integrity
{¶ 29} Varsel’s final argument is that the effect of the statute violates his right to bodily integrity. He claims that prohibiting him from wearing earplugs to guаrd against damage to his ears caused by wind noise amounts to egregious government interference that shocks the contemporary conscience.
{¶ 30} Substantive due process protections have been afforded only in certain fundamental realms, relating to “marriage, family, procreatiоn, and the right to bodily integrity.” Peoples Rights Org., Inc. v. Montgomery, 142 Ohio App.3d 443, 491, 756 N.E.2d 127 (12th Dist.2001), quoting Albright v. Oliver, 510 U.S. 266, 272, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994). The protection of substantive due process exists to ensure “‘the right to be free [from] state intrusions into [the] realms of personal privacy and bodily security through means so brutal, demeaning, and harmful as literally to shock the conscience.’” Id., quoting Lillard v. Shelby Cty. Bd. of Edn., 76 F.3d 716, 725 (6th Cir.1996).
{¶ 31} Just as courts have found no substantive due proсess violation in the requirement that a person wear a seatbelt or a motorcycle helmet, we find no violation in prohibiting a person from placing an object in his or her ears which may restrict his or her
{¶ 32} We find Varsel’s fourth assignment of error not well-taken.
III. CONCLUSION
{¶ 33} Although Varsel has raised some interesting policy considerations in his challenge to the
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
James D. Jensen, J. JUDGE
CONCUR.
_______________________________
JUDGE
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: http://www.sconet.state.oh.us/rod/newpdf/?source=6.