In the Matter of:
Case No. TR20080510
OBJECTION TO MAGISTRATE'S ORDER
Ian A. Neinast
Robert A. Neinast (father)
8617 Ashford Lane
Pickerington, OH 43147
Phone: (614) 759-1601
Ian Neinast hereby objects to the Magistrate's order regarding the sentence imposed for operation of an unsafe vehicle. The sentence was imposed on the Magistrate's belief that Ian was guilty of an assured clear distance violation even though Ian admitted only to the operation of an unsafe vehicle. Furthermore, the sentence does not comport with the purposes of disposition for juvenile traffic offenders.
II. STATEMENT OF THE CASE
A. History of the Case
At arraignment on August 27, 2008, Ian waived his right to an attorney and pled “Not True” before Magistrate Judge Carl McCoy to the charge of failure to maintain an assured clear distance, O.R.C. § 4511.21. The charge resulted when Ian's vehicle rear-ended the vehicle in front of him due to brake failure. Trial was scheduled for September 19, 2008.
On September 11, 2008, Erin McLaughlin of the Fairfield County Prosecutor's office offered a plea agreement to amend the charge to operation of an unsafe vehicle. Ian, with his father, accepted the agreement on September 12, 2008, and returned the plea agreement to the Prosecutor's office on that date.
On September 19, 2008, Ian waived his right to an attorney and, after the court accepted the plea agreement, waived his right to a trial and admitted to the charge of operation of an unsafe vehicle, O.R.C. § 4513.02. Before passing sentence, the Magistrate asked Ian to tell his story of what happened, which Ian and his father did. After listening to the story, the Magistrate asked Ian, “What have you learned from this?” Since it was brake failure, Ian responded by noting that he is much more prepared to apply the emergency brake than he was before. The Magistrate then prompted something to the effect that Ian should have learned to leave more distance in front of him. The Magistrate then pronounced a sentence consisting of a 30-day license suspension, taking the D.E.F.T. (traffic school) Class, and writing a 500-word essay on “3 major concerns of a driver.” In discussing the suspension, the Magistrate noted that a subsequent offense would result in his license being automatically suspended by the Bureau of Motor Vehicles. At the end of this description, Ian's father asked if the sentence was appropriate given that Ian had no control or knowledge over the condition of the brakes. The Magistrate responded by saying that, “That's just your view of things,” with the clear implication that he was not accepting the description of the brake failure and believed that Ian was following too closely to stop in time.
We object to the appropriateness of the sentence given that the brake failure was beyond Ian's control, that its imposition violates the intent of the “Disposition of juvenile traffic offender” statute, O.R.C. § 2152.21, and that the record of the case shows that the sentence was imposed as punishment for following too closely, an offense that was not admitted to and for which no evidence was submitted.
B. Facts of the Case
These are the facts of the case as related by Ian and his father to the Magistrate Judge after admitting to the charge of operation of an unsafe vehicle and before sentencing.
On July 29, 2008, Ian and the rest of the Pickerington North Band Percussion Unit drove to dinner in 5 separate cars. On the way back from dinner, Ian was the fourth car in line. When the stop light ahead of them turned red, Ian applied the brakes and realized that they were not working. After uttering an expletive, in order to try to stop, he pulled his foot off the brake and slammed it down hard on the brake. At this point the vehicle did brake, but not fast enough to prevent a slow-speed collision with the car in front of him. His front seat passenger, Michael Kelly, also observed this reaction (attempt to brake, expletive, slam on brakes) from Ian.1 A chain-reaction collision then occurred with the three cars ahead of Ian. The Magistrate was shown a picture of the front of Ian's vehicle after the collision (Attachment 1). The only indication of a collision on Ian's car was a horizontal crease on his license plate, so the collision could not have been at a very high speed. After the collision, 2 of the passengers in the car in front of Ian were concerned about whiplash, so one of their mothers transported them to the hospital as a precautionary measure. Although one of the girls was given a neck brack, she wore it at the hospital for about an hour, then removed it and returned to the band practice field carrying and playing her bass drum. Thus, there were no injuries of any consequence resulting from the collision.
Because the brakes had failed, Ian's mother drove the car from the collision site directly to the local Firestone repair shop. The brakes did work during that trip, indicated an intermittent problem (anybody who has ever owned a car knows about intermittent problems that seem to refuse to show themselves at repair shops). Firestone did a full brake inspection and did not find anything wrong. A copy of the receipt is attached as Attachment 2; while the Magistrate was not shown this receipt, Ian's father did read to him the notation regarding the symptom: “SON SAID BRAKES FAILED WHEN DRIVING.” Even though Firestone found nothing, Ian's parents did not feel he could drive a vehicle we had no confidence in because of the collision. The next day, the vehicle was taken to Tuffy. Tuffy recommended replacing the master brake cylinder (saying there was evidence of leakage at some point) and the power boost unit (saying that the symptoms, as described, suggested that the power boost unit was the problem). Ian's parents had both those items replaced. A copy of that receipt is attached as Attachment 3.
Ian's father noted that, after the replacement of those two parts, the brakes definitely felt “different.” Before the repair, they had a certain rough feel about them (without feeling dangerous, though). Afterwards, they had a smooth feel. This, combined with Ian's experience, strongly suggests that the brakes were defective.2
Obviously, none of these “facts” are evidence. Since there was no trial, the only “evidence” relevant to sentencing are the elements of the offense to which Ian admitted: Operation of an Unsafe Vehicle. As stated in O.R.C. § 4513.02(A),
No person shall drive or move, or cause or knowingly permit to be driven or moved, on any highway any vehicle or combination of vehicles which is in such unsafe condition as to endanger any person.
In this instance, the unsafe condition was intermittent brake failure. Officially, there is nothing before the court regarding failure to maintain an assured clear distance.
The purposes of dispositions for juvenile offenders, including juvenile traffic offenders, is stated in O.R.C. § 2152.01:
(A) The overriding purposes for dispositions under this chapter are to provide for the care, protection, and mental and physical development of children subject to this chapter, protect the public interest and safety, hold the offender accountable for the offender's actions, restore the victim, and rehabilitate the offender. These purposes shall be achieved by a system of graduated sanctions and services.
(B) Dispositions under this chapter shall be reasonably calculated to achieve the overriding purposes set forth in this section, commensurate with and not demeaning to the seriousness of the delinquent child's or the juvenile traffic offender's conduct and its impact on the victim, and consistent with dispositions for similar acts committed by similar delinquent children and juvenile traffic offenders. The court shall not base the disposition on the race, ethnic background, gender, or religion of the delinquent child or juvenile traffic offender.
The sentence imposed on Ian for the offense to which he admitted does not appear to comport with these statutory requirements.
A. The Magistrate Judge Imposed Punishment for the Offense of Failure to Maintain an Assured Clear Distance
It is pretty clear that the Magistrate was doubtful that intermittent brake failure was the cause of the collision. When he asked Ian what Ian had learned, the Magistrate prompted that Ian should have learned to keep more distance, an element of an assured clear distance violation but not of an unsafe vehicle violation. Furthermore, when the Magistrate advised Ian on what would happen if there were subsequent violations, the Magistrate said that another violation would result in the automatic suspension of Ian's license by the BMV. The statute governing such automatic suspensions is O.R.C. § 4510.31, which includes a list of the statutory sections that trigger a suspension. However, the operation of an unsafe vehicle statute, O.R.C. § 4513.02, is not among the violations for which an automatic suspension occurs. Since an assured clear distance violation is on the list for which automatic suspensions occur, the Magistrate clearly (and incorrectly) was thinking Ian was to be sentenced for violating that assured clear distance statute. Finally, when Ian's father asked whether the sentence was appropriate given Ian's lack of control over the situation,3 the Magistrate intimated once again that he did not really believe brake failure was the cause, and that the sentence was thereby appropriate.
However, what the Magistrate believes about whether Ian was following too closely or had brake failure is irrelevant. While the facts of the case presented above are not sworn evidence, neither is the Magistrate's belief. Due process requires that the sentence be based on the charge actually admitted to.4
The sentence must be commensurate with the admitted offense, not some other unadmitted offense. Furthermore, the sentences must be designed to put into effect the purposes of disposition under O.R.C. § 2152.01.
B. A License Suspension is not an Appropriate Sentence for Unexpected and Intermittent Brake Failure
The purposes of disposition statute for juvenile traffic offenders states that one purpose of a disposition is for the mental development of the child. It is difficult to see just how suspending the license for a brake failure might accomplish this. If the offense had truly been following too closely, then a license suspension can teach the child to leave more distance. But what lesson is the child to learn to prevent brake failure in a vehicle that the child does not even own? That the child should be able to detect and prevent a fault that even a Firestone brake inspection was unable to find?
This distinction is recognized in the Ohio Revised Code. As already mentioned, operation of an unsafe vehicle is not among the statutes that can trigger an automatic license suspension for second or third offenses. See O.R.C. § 4510.31(A)(1)(a). The legislature did not consider operation of an unsafe vehicle the sort of offense requiring a license suspense. It is unreasonable for this Court to do so.
Another purpose of disposition is to “hold the offender accountable for the offender's actions.” Ian's action, in this case, upon having the brake failure, was to make a renewed effort to stop the car. But the brake failure was beyond his control—there was nothing that he could have done to know about or to prevent that brake failure. A license suspension holds the juvenile accountable for events beyond the offender's actions, and is unreasonable.
The Ohio Revised Code also recognizes this distinction. For instance, O.R.C. § 4507.07 specifically relieves a minor of tort liability and places that liability on the parent that signs the license application. In other words, the minor is only held accountable for those things that the minor is generally capable of being held accountable for. In this case, Ian was not responsible for the brake failure and should not be held accountable for it. If anything, that accountability should rest on his parents.5
C. Traffic School is not an Appropriate Sentence for Unexpected and Intermittent Brake Failure
It is hard to see how making Ian attend traffic school comports with the purposes of disposition. The D.E.F.T. Information Sheet contains a list of items that will be covered in the class. There is nothing that this class can teach Ian about avoiding an unexpected and intermittent brake failure. By its very nature, it cannot be anticipated. In fact, as already stated, Ian made a valiant effort to avoid the collision, and has reviewed in his mind how he might have utilized the emergency brake (though, considering how quickly he reacted in re-stomping the brake a slowing the vehicle, applying the emergency brakes probably would not have prevented the collision). The D.E.F.T. program simply is not designed for the sort of violation Ian admitted to. In fact, the D.E.F.T program is a “juvenile driver improvement program” as described in O.R.C. § 4510.31, which is specifically designed to remedy the violations described in that section. Again, as already noted, that list of violations does not include operation of an unsafe vehicle. The juvenile driver improvement program does not anticipate that class for that violation. It is therefore unreasonable to make it part of the sentence for an unsafe vehicle offense.
Furthermore, traffic school is not authorized by law. O.R.C. § 2152.21 lists those dispositions authorized by law for juvenile traffic offenders. Those are 1) costs and fines; 2) license suspension; 3) community control; 4) restitution (for non-minor misdemeanors—not applicable); or 5) detention (for drug offenses). Traffic school is not on that list, and hence is not authorized. Traffic school is only authorized, by O.R.C. § 4510.31 and O.R.C. § 4510.311, for reinstatement after an automatic suspension by the Bureau of Motor Vehicles. It is not authorized as part of the sentence for a juvenile traffic offender.
For these reasons, the Court should not approve the Magistrate's order in this case. The sentence should be reduced to one appropriate to the purposes of disposition for juvenile traffic offenders.
/s/ Ian A. Neinast
Ian A. Neinast
/s/ Robert A. Neinast
Robert A. Neinast (father)
8617 Ashford Lane
Pickerington, OH 43147
Phone: (614) 759-1601
1. That Michael Kelly also saw Ian's reaction was not related to the Magistrate Judge. If the case had gone to trial, Michael Kelly would have been called as a witness. [Back]
2. The interior of the power unit was not examined. It was a sealed unit that Tuffy returned to its parts supplier. [Back]
3. Actually, given the unexpectedness of the brake failure, Ian acted rather responsibly by pumping the brakes then slamming down on the brake pedal, an action which will often provide extra braking fluid and thereby provide braking. [Back]
4. Note that the Prosecutor's office apparently believed that intermittent brake failure was the cause of the collision, since after investigating the details of the collision, they moved for the plea agreement amending the charge to operation of an unsafe vehicle. [Back]
5. It should be noted that Ian's parents, once they knew of the brake failure, acted responsibly and immediately pursued a course of action to ensure the safety of the brakes on the vehicle. They had all major, possibly-culpable brake components replaced. [Back]