Texting & Driving: We All Do It

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The State’s Struggle to Enforce a Poorly Written Law

Everyone does it, whether you admit to it publicly or not. In fact, so many people do it, if you are savvy enough on the roads, you can look around and probably see 5 out of 10 drivers doing it every morning on the way to work. What am I talking about? Texting and driving.
How can you tell people are doing it? Look for the weaving cars in and out of lanes of travel, the cars that are traveling 20 under the speed limit, and/or the cars where the drivers slam the brakes at the last possible moment — over and over again. Look carefully enough, and you just might see an officer doing it, or maybe a judge, or maybe even a defense attorney who writes blogs!
With that said, this article isn’t intended as a tutorial on the dangers of texting and driving. Hundreds upon thousands of articles have been written on that subject, so we’ll leave that to the experts. Yet, despite the statistics and despite the commercials, that doesn’t stop you, me, or anyone from doing it, unfortunately.  Because the problem has become so commonplace, the Indiana legislature decided that they needed to get involved in trying to prevent drivers from doing it — and not just by providing public service announcements, but rather by attempting to draft a statute that addresses it. Fortunately for those that are accused of violating it, they came up short.
In IC 9-21-8 the Indiana legislature addresses most of the infractions relating to operating a vehicle, including the newly drafted and signed into law, IC 9-21-8-59, “Use of Telecommunications Devices while Operating a Motor Vehicle.” (In layman’s terms, texting/emailing while driving). That statute reads as follows:
Sec. 59. (a) A person may not use a telecommunications device to:
(1) type a text message or an electronic mail message;
(2) transmit a text message or an electronic mail message; or
(3) read a text message or an electronic mail message;
while operating a moving motor vehicle unless the device is used in conjunction with hands free or voice operated technology, or unless the device is used to call 911 to report a bona fide emergency.
(b) A police officer may not confiscate a telecommunications device for the purpose of determining compliance with this section or confiscate a telecommunications device and retain it as evidence pending trial for a violation of this section.
As added by P.L.185-2011, SEC.4.
So what is a “text message?” It’s defined in IC 9-28-8-0.5 as “a communication in the form of electronic text sent from a telecommunications device.”
As a defense attorney, it’s easy to see the holes the legislature forgot to fill. First of all, the only two methods of using a cell phone they addressed and forbade are: (1) typing, transmitting, or reading a text message, or (2) typing, transmitting, or reading an electronic message (or e-mail). They didn’t address using GPS features or a map to find your desired location, surfing the web, typing in a note to yourself, playing video games, accessing your music, dialing a call, taking a call, face-timing with a friend, creating an appointment on your calendar, checking the time, finding a contact, checking your bank account, or maybe even writing a romance novel (tongue in cheek) — and that doesn’t even address the thousands of other things you could be doing on your phone while driving. But, according to the statute, all of those are legal to do while driving because they weren’t addressed or forbidden in the statute.
If you combine the legislature’s failure to address other means by which we all use a cell phone to IC 9-21-8-59 section (b), the problem compounds itself. Why? The statute clearly says that a police officer CANNOT confiscate your phone for determining if you were in fact using it for texting or emailing! Furthermore, Indiana case law says that even if they could confiscate it, they have to have a warrant signed by a judge to turn the phone on to search its contents. However, even if they could search your phone, texting & emailing while driving is legal if you do it through a hands free device. It is nearly impossible for the State to prove that you weren’t using a hands free device, like Bluetooth, without searching your car through a warrant or with your consent — further adding to their difficulty in proving the case.

So, it begs the question, “How can the State prove you were texting/emailing and driving when they can’t even take or search your phone?” Simply put, it’s nearly impossible.

At trial, the State can only rely on the officer’s testimony as to what it appeared you were doing with your phone, what you said you were doing with it when asked, or what was on your screen when you consented to allowing the officer to look at it. Obviously, then, it’s important that you keep in mind that you are NOT required to say anything to a police officer or provide the officer access to your phone at all. Without your statements or access to your phone, the State can only guess as to what you were doing, and that should never be enough to find guilt at trial.
Surely over time the legislature will re-look for ways to fix the drafting of this statute, but until then, it’s important that you hire an attorney that understands how to fight a ticket involving the use of a cell phone. Furthermore, if you are a CDL driver, you need to keep in mind that operating a commercial vehicle while using an electronic device is a serious infraction that can lead towards your license being suspended for 60-120 days. As such, the stakes couldn’t be higher.
If you find yourself facing a ticket for using your cell phone while driving, give the experienced litigators at Banks & Brower a call. We’ll fight for and defend your rights every step of the way. Give us a call at (317) 870-0019, today.