Defense attorney: Texting while driving 'very difficult to prove'
Posted July 28
Raleigh, N.C. — 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
(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.)