As you may have heard, Texas has passed House Bill 62 which will be codified as Section 545.4251 of the Texas Transportation Code. This new law, effective September 1, 2017, will prohibit the use of a portable wireless communication device to read, write, or send an electronic message while operating a motor vehicle, unless the vehicle is stopped. Said another way, you can no longer text and drive unless you are safely stopped at a red light or stop sign. Electronic message means a text message, email, or even social media message that is being sent for the purpose of communicating with another person. Certain exceptions will apply for emergency situations.
Let me start off by saying that I completely agree with the intentions of this legislation. Texting while driving is a dangerous activity and definitely limits a person's attention to their surroundings while performing a very important task. We're all guilty of it, including me. There have been entirely too many deaths related to this, and a human life is never worth responding to a text or email. Whatever the message is, it can wait until you are stopped safely or, preferably, not behind the wheel at all. Having said that, the focus of this blog entry will be on the potential problems that I see with the enactment of Sec. 545.4251.
Narrow Focus / Incorrect Citations
First, this new law only prohibits texting, emailing, or messaging while driving, leaving many of the things we do with our phones on a daily basis (while driving) completely legal. You can still use your phone for GPS purposes, you can still browse and listen to music, you can still browse the internet, you can even still dial phone numbers and call from your phone. I foresee many issues with officers pulling drivers over for texting and even issuing them a citation, when in actuality they were typing in an address on their GPS app, searching for their favorite song on I-Tunes, or even just searching Google for reviews of a restaurant they want to try for lunch. Or what about Pokémon Go, does anyone still play that?
By the very nature of its wording, this new law prohibits only a small fraction of activity that smart phone users engage in. This means that officers can pull you over for a variety of conduct that may appear to be illegal, when in fact you were engaging in completely legal activity.
How will this new statute ever be enforceable?
An officer will not be allowed to take your phone from you without your permission based solely on a violation of 545.4251, so there isn't going to be a screenshot of a text from Bae as "Exhibit 1." This means the only proof in a trial would be based on the officer's testimony and, possibly, phone records that the municipal prosecutor has subpoenaed from your cell phone provider. But how accurate are those phone records? Do the logs show the exact time that you sent a message down to the second? And can that data be correctly matched to the exact time the officer allegedly witnessed you sending a text message? Is it possible that the log shows a text or email that was sent while you were stopped at a red light 30 seconds prior to being stopped (which is completely allowed)? This statute will also dramatically increase already over-worked municipal prosecutors workloads and increase the amount of paperwork they attempt to present to a Judge or Jury as evidence.
Sure, a prosecutor can still attempt to convince a Judge or Jury through the officer's testimony, even without phone records. But let's think about this for a second. How does an officer know the difference between someone texting or emailing and someone doing literally anything else that involves typing on or looking at their phone? And how would they ever be able to differentiate that activity while in their police cruiser behind you? In reality, they can't and we all know it. And remember, in Texas even Class C traffic offenses are still criminal offenses, which means the State has to have proven beyond a reasonable doubt that you engaged in a particular offense. This sounds like a lot of doubt to me.
More Reasons for Stops
Guess what? The majority of DWI and Possession of Marijuana cases that our office handles start off as simple traffic stops and then turn into much more. All an officer needs is probable cause or reasonable suspicion of illegal activity to pull you over, and any old traffic violation will do. For many years, traffic offenses such as speeding, failing to signal lane change, driving with a defective tail-light, no inspection, etc. have given officers the requisite legal authority to interrupt your day and detain you momentarily. This leads to interactions with the officers, which can lead to higher criminal charges depending on what you've been up to. I foresee a massive influx of criminal charges coming about based on this new authority officers have to initiate a traffic stop.
I also foresee possible abuses of power situations that may arise due to an officer claiming he thought he saw an individual texting while driving, simply to allow him to detain that person although he might not otherwise have had the legal authority to do so. Yes, some officers do lie. Police Officers are human beings, they aren't all perfect. It happens. Officers may also think they see you violating the statute and pull you over based on that mistaken belief, leading to an otherwise avoidable traffic stop. This means more chances of violations to your rights. Sure, defense attorneys can move to suppress the stop (see blog post on Motions to Suppress here) based on lack of probable cause/reasonable suspicion, but remember it's a much lower burden of proof for a prosecutor to get past in a suppression hearing, and an officer's "good faith belief" can always be considered by the Court, even if he was actually wrong.
With the prohibition of only texting while driving, I think the legislature has created a statute that will actually cause quite a lot of issues in the coming days. While I love my phone as much as the next person and keep it with me virtually everywhere I go (that's a topic for another day), I believe a better solution is to prohibit all cell phone use while driving unless with a hands-free device. This would lead to better enforceability and less chance of incorrect stops. Officers would be able to pull anybody over that even picks up and looks at their phone regardless of the reason. There would still be built in exceptions, as there are now, for those using their phones for emergency purposes or if safely stopped.
Phone records could still be subpoenaed to show that any phone call, data transfer, or messaging service was sent at that time to try to aid a fact finder. But at that point, there is much more data to present to a Judge or Jury as all phone use would be prohibited. As with many traffic offenses, the matter would probably come down to whether the Judge or Jury believes an officer's testimony that he viewed someone using their phone in any manner while driving.
While this solution could still result in abuses of power by officers, it would be far more enforceable than the current statute and would also limit the number of drivers wrongfully charged with crimes that were actually engaging in totally lawful activity.