DAVID W. PHILLIPS PROSECUTING ATTORNEY UNION COUNTY ∙ OHIO

S.B. No. 44

Senate Criminal Justice Committee

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Hon. David W. Phillips, Esq. Union County Prosecuting Attorney

Good Afternoon Chairman Eklund, Vice-Chair Obhof, Ranking Member Thomas, and members of the Senate Criminal Justice Committee.

My name is David Phillips, and I have the privilege of serving the people of Union County as Prosecuting Attorney. I am here today to offer support of SB-44, common sense legislation designed to protect young children from the dangers of automobile crashes.

I am president-elect and chair of the Legislative Committee of the Ohio Prosecuting Attorney’s Association. The Association is in full support of this legislation.

This body has a long tradition of protecting children. Senate Bill 44 continues this tradition in two ways: by permitting law enforcement officers to cite violators of current child restraint laws as a primary offense; and second, by allowing prosecutors to use the failure to restrain a child as evidence in a criminal prosecution if an unrestrained child is injured or killed because of a reckless act of the driver.

Ordinarily, county prosecutors do not deal with child restraint citations. I became aware of the status of the current law on December 26, 2013, when a 4-year old child was killed after he fell from a moving motor vehicle. This child reportedly fell out of an unlocked vehicle door which opened as the vehicle moved from a driveway onto the roadway. The child held on, was drug a short distance and then was run over and crushed by the rear wheel of the vehicle after he could no longer hang on to the side of the van.

Ohio State Highway Patrol troopers determined there were no child restraints and no booster seats in the vehicle. The driver was charged with involuntary manslaughter and aggravated vehicular homicide. At the time of his death, the child weighed 40-pounds and was 4-years old.

UNION COUNTY JUSTICE CENTER ∙ 221 WEST FIFTH STREET ∙ MARYSVILLE ∙ OHIO ∙ 44440 ∙ PHONE ∙ 937-645-4190 ∙ FACSIMILE ∙ 937-645-4191

A child of this age and weight would be required under current law to be secured in a child booster seat. The reason for this and for all child restraint laws is clear, child restraints save lives. The National Highway Traffic Safety Institute says enforcement is a key component to increasing proper restraint use.1

Proper use of child restraint is critical to the health and safety of Ohio’s children, as motor vehicle crashes are the leading cause of death and disability for pediatric and adolescent children. 2

Yet current law prohibits law enforcement officers from stopping vehicles in which children of this age are unrestrained; despite mandating using child restraints, Ohio law ties the hands of law enforcement. Equally troubling is the statutory prohibition against using evidence of the failure to restrain in any criminal prosecution, other than for violating the child restraint law itself.

This prohibition may have consequences in the prosecution of the driver who caused the death of the 4- year old child. The law may shield the jury from all of the facts surrounding the death of this young boy. Drivers have a duty to the motoring public to operate the vehicles they drive in a safe and responsible fashion. Drivers are rightfully held responsible if they fail in their duty. Yet the child restraint law can be violated with complete indifference without significant consequence – even after a child is killed or seriously injured.

It is a general rule of evidence that relevant evidence is admissible unless there is some reason to exclude it3. There are no legitimate reasons of which I am aware to exclude evidence of a failure to comply with this section as evidence in a criminal prosecution.

On behalf of myself and Ohio’s elected prosecuting attorneys, I urge this committee favorably consider this legislation.

I appreciate the opportunity to testify in support of this Bill, and would be happy to answer any questions the committee may have.

Thank you very much.

Respectfully,

David W. Phillips Union County Prosecuting Attorney

1 http://www.nhtsa.gov/Driving+Safety/Research+&+Evaluation/Increasing+Seat+Belt+Use+Among+8-+to+15-Year-Olds

2 Nance, Lutz, Arbogast, Cornejo, Kallan, Winston, & Durbin, 2004; NHTSA, 2002.

3 Ohio Evid. R. 402.