The texting while driving ban, which went into effect on Sept. 1, 2017, had widespread support and understandably so. The Department of Public Safety attributes 455 deaths and 3,000 serious injuries a year to distracted driving.
Texting While Driving Ban
The texting while driving ban can be found in Section 545.4251 of Transportation Code. It prohibits 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.” A first offense results in a fine of $25 to $99. A subsequent offense will result in a fine of $100 to $200.
Electronic messages include texts, emails, and other communications that are read from or entered into a wireless communication device for the purpose of communicating with another person.
A wireless communication device is any device that uses a commercial mobile service that connects mobile devices for profit.
Texting While Driving Under 18
Transportation Code Section 545.424 prohibits any person under the age of 18 from operating a motor vehicle while using a wireless communication device. No exception is made for vehicles that are stopped. A first offense results in a fine of $25 to $99. A subsequent offense will result in a fine of $100 to $200.
Texting While Driving Causing Death or Serious Bodily Injury
It is a Class A misdemeanor if it is shown at trial that a person caused the death or serious bodily while using an electronic communications device while driving.
What Defenses Apply to Using a Wireless Communication Device While You are Driving?
1. You used a hands-free device.
2. You were using your GPS.
3. You were reporting illegal activity
4. You were summoning help in an emergency
5. You were using information regarding road conditions or traffic (like the Waze App)
6. You were reading a message from a person reasonably believed to be communicating about an emergency
7. You were using a music app
8. You were stopped
An officer cannot arrest you for using your wireless communication device, but it may justify a stop where he discovers another reason to arrest you.
Problems that Will Emerge with the Texting While Driving Ban
1. Officers will be able to stop anyone who is using their cell phone in their cars. Remember, many arrests occur as the result of a routine traffic stop. Driving while using your cell phone for anything gives an officer the ability to say they believed they had reasonable suspicion that you were texting. Think about that for a second: The fact that you were not actually texting is unlikely to result in the stop being invalid. All the officer needs is reasonable suspicion that an offense took place to stop you, not the actual commission of the offense.
2. Municipal prosecutors may end up subpoenaing lots of phone records. Police officers are prohibited from taking or inspecting phones “unless authorized by the Code of Criminal Procedure, the Penal Code, or other law.” Officers will not be able to force you to give them your phone or seize your phone for only a violation of the texting and driving statute.
To prove the actual offense, a police officer will have to prove you were using your cell phone for reading, writing, or sending an electronic message. While a subpoenaed phone log may be helpful for the prosecution, they may not need it. Remember, all the prosecutors have to do is convince the judge or jury that you were reading an electronic message.
Also published on Medium.