WRAL Investigates

Defense attorney: Texting while driving 'very difficult to prove'

Posted July 28

— More than 3,000 people die and more than a quarter-million are injured in the U.S. each year in crashes involving texting while driving, according to the Harvard Center for Risk Analysis. Despite the danger, many people still text behind the wheel, but punishing them isn’t always easy.

A recent study by Forbes Business found that 47 percent of adults admit they text while driving and that 58 percent of high school seniors text friends instead of paying attention to the road. Despite those numbers, few people are ever charged.

North Carolina is one of 40 states that have laws against texting while driving. In North Carolina, it is a primary offense, meaning drivers can get pulled over if an officer sees them texting on the road. But getting charged is one thing. Getting convicted isn't so simple.

Last year, 1,458 people were cited with texting while driving in Wake County – about 300 more than the previous year. In 2011, fewer than 900 drivers were cited. Interim Wake County District Attorney Ned Mangum and other prosecutors say they hope those numbers will act as a deterrent.

“The more people that are aware that texting while driving is dangerous is better for the public, and the less people that do it, the safer the roads will be,” Mangum said.

Law enforcement officers hope to send the same message with more crackdowns on distracted drivers. During a recent campaign in Cary, 80 drivers were pulled over, but not everyone received a ticket.

WRAL Investigates found many drivers who were cited didn’t end up paying the price.

Christopher Lynn was cited for texting while driving, but his case was thrown out. He says he was looking at a map on his phone, not texting.

“Ultimately, the law is rather toothless,” Lynn said. “What I did was trace along the road I thought I was on (on the phone) … When I looked up, there was some lights behind me, and (the officer) said I was texting while driving.”

Of the 1,367 cases that were disposed of last year in Wake County, almost half of the drivers paid the $290 in fines and court costs. In many of the remaining cases, drivers fought and won.

“In all honesty, I could have accepted the charge, but why accept something that I didn’t do?” Lynn asked.

Defense attorney Landon White says there's plenty of gray area in the law.

“The way the statute is written, it’s very difficult to prove beyond a reasonable doubt in court,” White said. “In order to show you were using your phone to text or emailing, they would have to have a search warrant.”

If an officer asks to see the phone, the driver does not have to hand it over.

“You can decline,” White said.

In North Carolina, the texting law applies only to moving vehicles. Drivers who are legally stopped at a red light can text and email. Drivers who are in a moving vehicle cannot text or email, but they are allowed to type into their phone's GPS and search for contacts.

That distinction makes it tough on prosecutors.

“It’s hard for a police officer to tell if you’re inputting numbers or are you text messaging someone when you’re looking at your phone,” Mangum said.

The law is different for children under 18 and school bus drivers. They are not allowed to use cellphones at all unless it is an emergency.

Mangum says many drivers admit to texting when they get pulled over. If drivers fight the citation, it puts the state in a tough position.

“Obviously, as the Supreme Court just told us, we’re not going to get a search warrant every time someone’s been stopped using a mobile phone. That’s not a good use of the state’s limited resources,” he said.

While the number of texting cases will likely continue to increase in traffic court, proving it will continue to be a challenge.

“The problem with it was it was circumstantial, and unless you show an officer, ‘Hey, they is all my text messages within the last hour,’ it’s pretty hard to enforce,” Lynn said.

While texting does carry a fine and court costs, much like the seat belt law, drivers won't get points on their license. A bill that would have doubled the texting fine to $200 never made it out of committee this legislative session.

NC's texting while driving law

§ 20-137.4A. Unlawful use of mobile telephone for text messaging or electronic mail.

(a) Offense. - It shall be unlawful for any person to operate a vehicle on a public street or highway or public vehicular area while using a mobile telephone to:

(1) Manually enter multiple letters or text in the device as a means of communicating with another person; or

(2) Read any electronic mail or text message transmitted to the device or stored within the device, provided that this prohibition shall not apply to any name or number stored in the device nor to any caller identification information.

(a1) Motor Carrier Offense. - It shall be unlawful for any person to operate a commercial motor vehicle subject to Part 390 or 392 of Title 49 of the Code of Federal Regulations on a public street or highway or public vehicular area while using a mobile telephone or other electronic device in violation of those Parts. Nothing in this subsection shall be construed to prohibit the use of hands-free technology.

(b) Exceptions. - The provisions of this section shall not apply to:

(1) The operator of a vehicle that is lawfully parked or stopped.

(2) Any of the following while in the performance of their official duties: a law enforcement officer; a member of a fire department; or the operator of a public or private ambulance.

(3) The use of factory-installed or aftermarket global positioning systems (GPS) or wireless communications devices used to transmit or receive data as part of a digital dispatch system.

(4) The use of voice operated technology.

(c) Penalty. - A violation of this section while operating a school bus, as defined in G.S. 20-137.4(a)(4), shall be a Class 2 misdemeanor and shall be punishable by a fine of not less than one hundred dollars ($100.00). Any other violation of this section shall be an infraction and shall be punishable by a fine of one hundred dollars ($100.00) and the costs of court.

No drivers license points or insurance surcharge shall be assessed as a result of a violation of this section. Failure to comply with the provisions of this section shall not constitute negligence per se or contributory negligence per se by the operator in any action for the recovery of damages arising out of the operation, ownership, or maintenance of a vehicle. (2009-135, s. 2; 2012-78, s. 9.)

53 Comments

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  • pedsrndad Jul 30, 1:05 p.m.

    I have been run out of my lane many times by some drivers either texting, dialing, looking at maps, well who cares what they were doing. Their eyes were off the road and they were endangering MY LIFE. I have seen people run stop signs, fail to yield, run red lights, change lanes with no warning, turn suddenly without a signal and almost invariably, they had a phone in their hands, looking down. Who has to die before the message gets across?

  • LetsBeFair Jul 29, 5:24 p.m.

    a couple weeks ago I took a picture of a Raleigh PD texting while driving. ... to bad the laws don't apply to them.

  • Objective Scientist Jul 29, 5:20 p.m.

    There has to be a way to fix this problem electronically. The phone manufacturers should take... View More

    — Posted by Walkin Man

    I agree... in fact, I believe the technology already exists to disable a cell phone while a motor vehicle is in motion, or some similar such remedy. Problem is... that and every other suggested "fix' to this serious problem is always opposed by someone! I've seen/heard time and again some INSIST that they cannot do their job if they cannot talk/use a phone while driving. With every "fix' there are those who oppose it and/or want an "exception" to the rule/law for certain things - namely whatever they want to do. I love - truly LOVE - our "freedom of speech" and "individual rights" that we have in the USA... but there are occasions when - for the greater and common good - there may need to be some restrictions! But... as I'm sure someone will point out... starting with such restrictions starts us down that proverbial slippery slope. If scientists could develop a "common-sense" drug that could be put in the water like fluoride... ???

  • Objective Scientist Jul 29, 5:13 p.m.

    Advanced technology - esp. in the form of cellphones/smartphones, etc., - has simply added to an already long list of things many do that distracts them from focusing on driving the motor vehicle such as tuning the radio, adjusting the volume, eating/drinking, "fixing" hair, putting on make-up, engaging in sexual activity, etc., etc. Anyone who thinks they can do any of those things - including use of a cell/smartphone, needs to really "think again"! I am appalled at what I see - DAILY, MULTIPLE TIMES PER DAY - people doing while driving. I feel I must - MUST - be even more alert. All I can say is... if a "texter", or DWI/DUIer, or anyone doing any of the other things I mentioned and more... causes my death by motor vehicle - I will HAUNT them eternally. And, it will not be a "pleasant" haunting.

  • Walkin Man Jul 29, 5:01 p.m.

    There has to be a way to fix this problem electronically. The phone manufacturers should take more responsibility. Maybe a big lawsuit would wake them up.

  • jellybiscuit Jul 29, 3:45 p.m.

    As a society, we couldn't care less about safety on the roads. Even the word "accident" which we apply to every vehicle crash implies there is no fault. Don't believe me? Look up the recent sentencing for DUI, Hit and Run, killing a pedestrian or cyclist.

    Until people are asked to drive like their license depends on it... like a jail term is on the line, their behavior won't change.

    The highways are full of inattentive, usually inept drivers. Attempting to compile a list of all the things they should not be doing is pointless. Reasonable, considerate people already know these things. The rest? Well... they just buy their inattentive, inept spouse a larger vehicle, so it's the other person who gets injured when the inevitable happens.

  • Alexia Jul 29, 2:56 p.m.

    I do not text and drive; however, I text at stoplights. I constantly use my Google Maps app on... View More

    — Posted by smartmomma

    Well, gee. How about putting it down? The smartphone industry does not need to solve problems you're creating for yourself. Seriously.

  • Alexia Jul 29, 2:55 p.m.

    While I appreciate the reason for having the texting while driving law, it's just another example of trying to fix a problem by tackling contributing factors, rather than trying to actually fix the problem. The problem is that people have accidents due distractions and fail to focus on the road. Anytime somebody rear-ends somebody, the police will dig to find out why. It might be the driver was trying to kill a spider in the passenger-side floor (driver hit me for that reason) or texting. Quite frankly, I don't care why, except to know that both drivers are preoccupied and not focused on driving.

    In those cases, the punishment should be more severe. Fining a person for texting is lost cause. You'll get a few people, but next year there will be a new crop of teens who will be texting.

    If drivers are told when they're licensed that insurance rates will double for accidents do to distraction, they might pay attention.

  • smartmomma Jul 29, 2:42 p.m.

    I do not text and drive; however, I text at stoplights. I constantly use my Google Maps app on the phone, because that's why its there, and I look up Pandora radio stations. Admittedly, this is a problem. I hope that the auto or smart phone industry can quickly implement a way that would allow users to do these things without having to scroll and type. It is very dangerous.

  • smcallah Jul 29, 2:35 p.m.

    I was behind a guy the other day in the left lane, not driving the speed limit or flow of... View More

    — Posted by ungolo

    Taking a picture is not prohibited according to the law as written. Only reading or sending texts or emails is illegal.

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