Clearly texting while driving ranks among the most dangerous driving habits. You are driving blind, literally not looking where you are going while you are looking at your cell to read or type a message that can wait. And not just not looking where you are going, but the thousands of pounds of force backed by metal traveling with you.
While numerous informational campaigns do what they can on the proactive side of curbing distracted driving, law enforcement efforts to enforce newer laws targeting the practice are stepping up. Departments have targeted violators during special crackdown events focused on talking or texting while driving. Likewise, on-patrol traffic stops enforcing the distracted driving laws and tickets issued after accidents caused by a distracted driver seem to be on the uptick.
Some departments have even gone to “great heights” to creatively observe and nab offenders, such as the West Vancouver Police and North Vancouver RCMP going undercover posing as sign maintenance employees in a cherry picker to gain a height advantage to see down into passing cars. When thumbs were clearly seen tapping away on a cell phone, a patrol car made the stop for the offense. Easy picking? Yes and no.
I’m sure you’ve seen it all too. Frankly, I see someone talking on a cell or looking down at a cellphone while driving every time I’m on the road. The head bobbing up and down as they attempt to glance back and forth – phone, road, phone, road. The cell in one hand, cigarette in the other and what’s left on the steering wheel.
Short of an admission to the offense by the driver, the law enforcement officer has the difficult task of showing the suspect was, in fact, typing or reading a text message, email, or otherwise using the cellphone in a manner that specifically meets the statutory definition of the violation. For example, looking at and even typing on a cell phone for use of a navigational program is often an exception to the distracted driving violations.
An example of such difficult law enforcement came recently in a decision by the U.S. Court of Appeals for the Seventh Circuit in the case of United States v. Paniagua-Garcia (7th Cir. 2016).
An Indiana statute forbids drivers to use a telecommunications device (normally a cellphone) to type, transmit, or read a text message or an electronic-mail message, Ind. Code § 9-21-8-59(a)—in short it prohibits texting or emailing while operating a motor vehicle. All other uses of cellphones by drivers are allowed. Here, while driving by the suspect on the interstate highway, an Indiana police officer observed Paniagua-Garcia holding a cellphone in his right hand, his head bent toward the phone, and saw that he “appeared to be texting.”
Paniagua-Garcia denied that he was texting, rather he was “searching for music” which would have been a legal act in Indiana. The officer never explained what created the appearance of texting as distinct from any one of the multiple other lawful uses of a cellphone by a driver. An examination of his cellphone revealed that it hadn’t been used to send a text message at the time the officer saw him fussing with the cellphone. Furthermore, the lawful uses of a cellphone while driving (under Indiana law) would have created a similar appearance by the driver to the officer — cellphone held in hand, head of driver bending toward it because the text on a cellphone’s screen is very small and therefore difficult to read from a distance, a finger or fingers touching an app on the cellphone’s screen.
All in all, the court stated, “No fact perceptible to a police officer glancing into a moving car and observing the driver using a cellphone would enable the officer to determine whether it was a permitted or a forbidden use.” The result? The original denial of defendant’s motion to suppress heroin seized from defendant’s car was reversed and remanded to the lower district court in the drug distribution case. The Court of Appeals agreed with the defendant driver that the officer failed to establish probable cause or reasonable suspicion to believe that he was violating no-texting statute at time of traffic stop. The fact that he MAY have been texting was not enough when the officer did not see any texting at time of stop and the driver’s actions were consistent with any number of lawful uses of cellphone.
Nevertheless, Judge Posner ended his opinion as follows:
Indiana is right to be worried about the dangers created by persons who fiddle with their cellphones while driving, but probably wrong to outlaw such fiddling only with respect to texting—if only because the effect of slicing up drivers’ use of cellphones in this way has been to make the Indiana statute largely inefficacious, such is the difficulty of distinguishing texting from other uses of cellphones by drivers by glancing into the driver’s side of a moving automobile. The contrast with Illinois, which has a “hands-free” law, 625 ILCS 5/12-610.2 (a driver is forbidden to use a cellphone with his hands, as distinct from using bluetooth or other technologies that enable the driver to communicate without manipulating his cellphone), is striking. For while in 2013 only 186 citations were issued for violations of the Indiana texting law, more than 6700 citations were issued in Illinois for violations of the Illinois hands-free law. (These figures are from Zach Myers, “Texting Tickets: Police Unable to Enforce Indiana’s Texting and Driving Law,” FOX 59, May 21, 2014, http://fox59.com/2014/05/21/3-years-later-police-say-indianas-texting-and-driving-law-remains-unenforceable/ (visited February 16, 2016).)
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