Everyone knows that it is unlawful to text while driving in North Carolina. But what’s the legal status of all of the other distracting things people do with their phones? Is it unlawful to take a selfie while driving? To post the selfie to Instagram? To look at a friend’s driving selfie on Instagram? To read another friend’s Facebook status update? To search the web for the latest weather forecast? Continue reading
Tag Archives: texting
The Ohio Supreme Court recently ruled that cell phones generally cannot be searched without a warrant incident to arrest. That court’s decision is here. The law in North Carolina appears to be otherwise, as I’ve noted here and here. But reading the Ohio decision reminded me of a topic some colleagues and I were discussing recently: can an officer who has stopped a driver for a traffic infraction, and who suspects that the driver was texting while driving, search the driver’s cell phone for evidence — such as a time-stamped text message from just before the stop?
The backdrop, as most readers probably know, is that effective December 1, 2009, new G.S. 20-137.4A makes it illegal to read or compose text messages while driving. It’s a misdemeanor for school bus drivers, but for the rest of us, penalties are slight. It is “an infraction . . . punishable by a fine of one hundred dollars . . . and the costs of court. No drivers license points or insurance surcharge shall be assessed as a result of a violation of this section,” and a violation isn’t negligence per se.
If texting while driving were a crime, and if the officer had probable cause to believe that the driver had committed it, the officer almost certainly could search the cell phone for evidence: the vehicle exception to the warrant requirement would probably apply, and the officer might have an exigent circumstances justification to boot, because any delay in searching the phone might result in the critical evidence being crowded out by newer text messages. Finally, in many cases, the officer could probably choose to arrest the driver, and could search the phone incident to the arrest. G.S. 15A-401(b)(1) (officers may arrest for any criminal offense committed in their presence).
Given that texting while driving is an infraction, though, how much investigative authority do officers have? I couldn’t find much law on this issue, particularly in North Carolina, so I don’t have a definitive answer. But I do have some food for thought:
- An officer’s authority to investigate an infraction is likely less than the officer’s authority to investigate a criminal offense. For example, G.S. 15A-242 appears to authorize the issuance of search warrants in connection with any criminal offense, but not infractions. And of course, officers may not arrest for infractions.
- In fact, one could read G.S. 15A-1113(b) to mean that an officer must simply “cite and release” for an infraction, i.e., that no additional investigation is permitted. There are out-of-state cases that provide some support for that idea. See, e.g., Washington v. Duncan, 43 P.3d 513 (Wash. 2002) (declining to permit investigatory stops based on suspicion of a civil infraction); Minnesota v. Holmes, 569 N.W.2d 181 (Minn. 1997) (parking violations insufficient to warrant investigatory search).
- The North Carolina case that’s closest to point, though, suggests that officers do have some investigative authority in connection with infractions. In State v. Parker, 183 N.C. App. 1 (2007), the court of appeals stated, “When a law enforcement officer stops a motorist based on probable cause to believe the motorist has committed a traffic infraction, the detention may last only as long as necessary to effectuate the purpose of investigating that infraction.
The question is exactly how far that authority goes, and as I’ve already confessed, I don’t have a clear answer. I do know that to sustain a search like the one under consideration, the state would need to show (1) that such a search is consistent with North Carolina’s statutory scheme, and (2) that it is reasonable under the Fourth Amendment. Anyone have any relevant authorities to share on either issue, beyond the ones discussed above? Any opinions about the reasonableness of such a search?
I blogged here about a new law, that prohibits texting while driving effective December 1, 2009. Texting while driving is an infraction, a non-criminal violation of the law, punishable by a $100 fine and costs of court. As one blog-reader noted, there are significant questions about how law enforcement officers will enforce the new law, given that it is permissible to enter letters or numbers into a mobile device for purposes other than texting, such as to place a telephone call or obtain driving directions. The reader suggested that perhaps the law was designed to cause drivers to “think twice” before texting while driving. Maybe so. But it remains to be seen whether the measure will reduce the practice.
And there is cause for concern if it does not. A 2008 report by the National Highway Transportation Safety Administration (NHTSA) summarizing studies of driver distraction notes that the auxiliary functions of cell phones, namely text messaging, downloading of audio and video, and gaming, are being performed largely “by drivers without fully-developed driving skills.” As a result, the report predicts a “synergistic acceleration” in the resulting safety problem.
It is worth noting that North Carolina, along with many other states, has done little to address the hazards associated with the traditional use of cell phones – placing and receiving telephone calls. While minors and school bus drivers are banned from using mobile phones while driving, subject to limited exceptions, no other restrictions apply to cell phone use by adults. This is true despite the fact that studies have shown a fourfold increase in the risk of serious crash involvement among drivers using a phone at the time of a collision.
So, what if the worst happens? While typing a text message, a driver crosses the center-line of a highway, hits another car head-on, and kills the driver of that car. What offense has the texting driver committed? Involuntary manslaughter, a Class F felony? Or is the more appropriate charge misdemeanor death by vehicle, a Class 1 misdemeanor?
Reckless driving can arise to the level of culpable negligence for purposes of an involuntary manslaughter conviction even in the absence of impairment by alcohol or drugs. See State v. Wade, 161 N.C. App. 686 (2003). But does texting while driving demonstrate the thoughtless disregard of consequences or heedless indifference to the safety of others necessary to constitute culpable negligence? It seems unlikely that a North Carolina court would find that texting while driving rises to this level of culpability, particularly given that the offense results in no license or insurance points and is not negligence or contributory negligence per se in an action for damages arising out of the operation of a vehicle.
Unquestionably, though, the texting driver has committed the offense of misdemeanor death by vehicle by violating a motor vehicle law and thereby causing the death of another person.
The New York Times reported recently about a new Utah law that punishes a texting or emailing driver who drives recklessly and causes a fatality as severely as a person who drives while impaired and causes a fatality. The law was enacted after a college student who was text messaging his girlfriend while driving his SUV to work crossed the center line of the highway and hit a sedan traveling in the opposite direction, setting off a chain of events that ended in a crash that killed both occupants of the sedan, who were scientists on their way to work.
In the Utah case, the investigating officer subpoenaed phone records that showed that the student and his girlfriend had sent 11 text messages to one another in the 30 minutes before the crash. Investigators concluded the student sent his last text when he crossed the center line.
According to the Times, Alaska is the only other state to “take a similarly tough approach to electronic distraction.” There, too, legislation resulted from a fatal accident.
It remains to be seen whether North Carolina’s new texting ban will avert such tragedy.
The New York Times reported recently that Transportation Secretary Ray LaHood announced plans for a “‘distracted driving summit'” to be held in September to address legal and policy changes to combat the dangers of texting and talking on cell phones while driving. The Times reported that the Transportation Secretary’s announcement was made on the heels of a proposal by several senators to withhold federal highway money from states that fail to ban texting while driving. This year, North Carolina joined the ranks of states (The Times reports there are 14 in all) that ban the practice.
New G.S. 20-137.4A makes it unlawful as of December 1, 2009, to operate a vehicle on a public street, highway, or public vehicular area while using a mobile telephone to manually enter multiple letters or text in the device as a means of communicating with another person. It is also unlawful to read email or text messages while driving. The ban does not apply if the vehicle is lawfully parked or stopped, or to law enforcement officers, fire department members, or ambulance drivers while they are performing official duties. Drivers are permitted to GPS systems and wireless communications devices used to transmit or receive data as part of a digital dispatch system along with voice operated technology. Texting while driving a school bus is a Class 2 misdemeanor, punishable by a fine of not less than $100. All other violations are infractions punishable by a fine of $100 and costs of court. No driver’s license or insurance points are assessed for a violation. Moreover, a violation of GS 20-137.4A is not negligence or contributory negligence per se. The General Assembly ordered the Joint Legislative Transportation Oversight Committee to identify and study the leading causes of driver distraction, the risks posed, and methods to manage those distractions and promote highway safety. The committee must report its findings and recommendations along with any proposed legislation to the General Assembly by April 15, 2010.