Texting While Driving Ban: An Ineffective Solution to a Pervasive Problem?

September 09, 2016

By Keffer Hirschauer LLP

As our lives continually get busier and busier, companies respond by producing products designed to help make our lives “easier.” One such product is the all too common cellular telephone or “smart phone.” Cell phones and smart phones allow us to browse the internet, respond to emails or texts, and even play games, all in the palm of our hands. Smart phones and cell phones are designed to give us the ability to multi-task. They give us the ability to read and send emails while traveling between meetings or to text a friend letting them know you are on your way to lunch. They give us the ability to have constant contact at the tip of our fingers.

Distraction.gov, the Official U.S. Government webpage for distracted driving states, that in 2013, 3,154 people were killed in car accidents caused by distracted driving. Distracted driving is defined as “…any activity that could divert a person’s attention away from the primary task of driving. All distractions endanger driver, passenger, and bystander safety.” See www.distraction.gov. The behavior of distracted driving can include actions such as texting or using a cell/smart phone. The very thing that was designed to make our lives easier appears to have been causing problems all over the country. In response to this statistic, many states, including Indiana, have enacted a law prohibiting texting and driving. In Indiana, the law prohibiting texting and driving falls under Indiana Code 9-21-8-59. This law provides that a person may not use a telecommunications device (i.e., a cell phone, smart phone, or any other device capable of sending or receiving electronic or radio transmissions) to type, transmit, or read a text message, or e-mail message while operating a motor vehicle. The law permits certain exceptions to this rule by allowing devices to be used in this manner if they are used in conjunction with hands-free or voice-operated technology, or if used to call 911 to report an emergency. I.C. 9-21-8-59.

But what happens if someone is pulled over and an officer is attempting to enforce, or investigate, a violation of this law? First and foremost, there are a multitude of other activities that can be done on, or with, a cell phone that are not prohibited by law. A law enforcement officer must have probable cause or reasonable suspicion to believe an individual was texting or emailing, and driving, in order to pull stop an individual for this behavior. The Federal Court of Appeals for the Seventh Circuit issued a decision in which it noted that “[n]o fact perceptible to a police officer glancing into a moving car and observing the driving using a cellphone would enable the officer to determine whether it was a permitted or a forbidden use.” United State v. Paniagua-Garcia, No. 15-2540 (February 18, 2016) (citing State v. Rabanales-Ramos, 359 P.3rd 250, 256 (Org. App. 2015)). In other words, the mere fact that a law enforcement officer sees an individual looking down at their phone, while driving, is insufficient to stop or detain an individual for texting while driving. Second, without the consent of the individual using the cell phone, a law enforcement officer may not take or confiscate the phone as evidence that the individual was in violation of the statute. Perhaps it is for these reasons that many are claiming that Indiana’s texting while driving ban is virtually unenforceable. See http://fox59.com/2014/05/21/3-years-later-police-say-indianas-texting-and-driving-law-remains-unenforceable/ (last visited September 9, 2016).

Contact us today if you have questions or believe your constitutional or criminal rights have been violated. We stand ready to provide our clients with trusted representation and accurate information regarding the law and its application to their individualized case. Act now and contact us today at (317) 857-0160.