Texting and Driving in Charleston SC – The New Law. Get Ready for Confusion

Our mandatory seat belt law was introduced slowly to the public as a “secondary” offense-that is, an officer was required to detect some other traffic violation authorizing a traffic stop before he or she could write a seat belt ticket.

Not so with the new driver texting ban law passed by City Council on October 8, 2013. As a “primary offense,” an officer can stop a driver for perceived violation of the texting law alone.

All traffic and criminal defense lawyers in Charleston should be very familiar with this new offense. Due to confusing language in this new law, I anticipate that there will be a host of challenges in court.

The need for the law was established to the satisfaction of City Council. Statistics associated with injuries and deaths arising from any kind of driving distraction clearly reflect the dangers arising therefrom.

Elements of the Texting Law

      I took the occasion to put this new law under the microscope. Here is what I found.

• The law does not apply to private streets and roads including driveways and parking lots
• The law does not apply outside city limits
  • Incorporated areas are not addressed
• The law does not apply if the vehicle is in a stationary and parked position
• The law does not apply to any person using a device for voice communication
• The following persons can legally text and drive as they like
  • Police
  • EMTs
  • Firefighters
  • Other undefined public safety officials in the performance of official duties
• While the law does not apply to voice communications, a person can call “911” without violating the texting ban.
• The law applies to a long list of electronic devices but to fall within the new law, the device must be that which allows a person to wirelessly communicate with another “while holding or operating such with the hand.”
• “Vehicles” include non-motorized devices. The law applies to any device that a person uses to transport or draw himself upon a street or highway. This includes skateboards, scooters, golf carts, bicycles and mopeds.
• “On Board Communication Device” is defined as a device that is hard-wired into the motor vehicle.

Here is where the fun starts. The definition of “use.”

• “Use” of such a device includes:
  • Holding a device, and one or more of the following acts:
    • Viewing
    • Talking
    • Transmitting images
    • Playing games
    • Composing, sending, reading, viewing, accessing, browsing, transmitting, saving or retrieving
      • Email, or
      • Text messages, or
      • Other, (undefined) electronic data

Penalties

• A fine of up to $100.00 and court costs
• No driving points are assessed.
  • [This would have to be enacted at the state level.]

How You Get Caught

• The officer who stops you for this offense:
  • Must have probable cause that a violation has occurred.
    • That probable cause must be based on:
      • The officer’s clear and unobstructed view
        • Of a person using (holding) the device
        • While driving or operating (not stationary or parked)
        • A vehicle
        • In the City of Charleston

Here is where the fun gets interesting-Use of the words “arrest, subpoena, seize and forfeiture.”

• If the arresting officer
  • Has probable cause to believe that a person has violated this section he or she may:
    • Subpoena the person’s telephone records, and,
      • May admit as evidence in court
      • Without proving a chain of custody
      • The telephone number or texting information
      • That is relevant.
      • However, the officer may not seize or try to forfeit the communication device. 

Voice communications

These are excepted from the ordinance. But how is an officer, via his or her “unobstructed view,” supposed to be able to distinguish between the act of texting or touching the device to dial or answer a call?

A Stationary and Parked Position

The law allows for texting from a stationary and parked position. Does that mean the driver must be legally parked? Does stationary include sitting at a stoplight or being backed up in traffic (although that rarely happens in the Holy City)?

Holding A Device

The ordinance requires proof that a driver was “holding” a device. What about devices that are mounted on the windshield, dashboard or on a floor stand such as are used to mount laptop computers in police cars? Does this mean holding in one’s hand?

Subpoena Telephone Records?

Current, big data procurement issues aside, where are the limitations on what a police officer may seize? All of your records? For what period of time? For every phone on your family account? How are obtained records to be maintained securely? How are the records to be destroyed or can the police kept them forever? How might the records be used by police outside the texting law prosecution?

Relevant records? Who gets to decide this prior to the time the records are obtained by police?

Did council really think this through? Should judicial oversight have been required?

Since the officer is prohibited from seizing a driver’s phone, to what degree is the officer allowed to roam through your phone at the traffic stop to confirm that the device number and provider information the driver provided him is accurate?

On board communication device

The inclusion in the ordinance of the definition of an “on-board” communication device” is meaningless inasmuch as the ordinance is otherwise silent as to the application of the phrase “on-board communication device.” What is an “on-board communication device?”

Is the law designed to be fairly applied?

If, as the preamble to the ordinance presents, a driver’s use or a handheld, electronic communication device constitutes such a dangerous act it is rendered a criminal act, why doesn’t the same undesired risk of danger to members of the motoring public occur when police, EMTS, firefighters and other undefined public safety officials text when driving? Are animal control officers public officials? How about meter maids?

Arrest? Enforcement?

“You can use a cell phone to dial and talk while operating a moving vehicle,” says police spokesman Charles Francis. “The manipulation of any other device would be in violation of the ordinance.” Mr. Francis was quoted in the Charleston City paper after passage of the law. Click here to read the entire article.

Does this mean that everyone should head to Wal-Mart and buy a disposable cell phone that has no texting function? Are such devices still available? What is a cell phone versus any other device?

The Charleston City Paper article also provided additional, important information. Paul Bowers, reporter for the City paper reported: “While the ordinance is effective immediately and carries a $100 fine, Charleston police will not start writing tickets immediately. Instead, the department will spend 30 days putting up signs and working on public education, followed by 30 days of issuing warnings. After those first 60 days, police will begin issuing fines.”

I recall seeing flashing signs positioned near the round Holiday Inn after adoption of the ordinance. The message read something like, “Put that phone down.” I neglected to stop my car, get out and take a photo. Point is, sixty days have passed. Any driver can be stopped and cited for this offense.

Use of the word “arrest” in ordinance is inherently problematic. Here’s why. One, this ordinance should not allow for the arrest of any person violating this law. Service of a summons or ticket should be more than sufficient to cite the violation and achieve the legislative intentions of the city council. This law’s grant of authority to arrest or not, should be made clear in the ordinance. You see, a current and historical problem as to enforcement for minor offenses via full custodial arrest could easily rear its ugly head within this new law.

In short, surely the city council did not intend authorize the arrest of a driver based upon an officer’s “belief” that the driver is texting on a device that he or she can use to lawfully dial a voice call?

Speaking of Vague…

That same City Paper story illustrated the confusion here, which did not appear to cause any legislative pause in considering the ordinance.

         City Councilman Aubry Alexander, who spoke to the City Paper via speakerphone while pulled over in his car, says he hopes the ordinance will make people “stop and think” about driving while distracted. But he says enforcement could be difficult as police try to suss out whether a driver was dialing a phone number or sending a text message. He also says enforcement west of the Ashley could present problems as drivers pass through pockets of city and county land. “If the county enacts [a ban], then you’ll have that consistency that many are looking for across the board,” Alexander says.

A police officer may have difficulty in determining if a driver was dialing or sending a text message? Would it be acceptable if a police officer had difficulty in determining if a driver was speeding?

Guidelines for Custodial Arrest Should Not Be Vague

In South Carolina, a police officer has complete and unfettered discretion to simply issue a ticket to a person for a minor offense, or to make a full, custodial arrest. No standards, policies or guidelines apply.

This is plainly wrong and needs to be corrected by the General Assembly without further delay.

Everyone is human, including police officers. Everyone can have a bad day, or a stopped driver can be having a bad day. With over thirty years experience in the criminal justice system under my belt, including experience as a law enforcement agent, I have seen or been made aware of instances were a person was arrested, say for open container of beer, was handcuffed, taken to the county jail and held until able to bond out. This particular incident of an “abuse” of discretion involved a tourist who is unlikely to ever visit our fair city again- Conde Nast awards or not.

“Oh,” but you say, that fellow must have been misbehaving. No he was not. This is the gravamen of my concern. But so what if the man was talking back or simply asking a question the officer just didn’t feel like answering? Such acts do not justify a “ticket” issuance circumstance rising to a full custodial arrest.

A decision to arrest must be made as a result of clear policy-such as commission of a serious offense, attempted flight from police or pursuant to clearly written and objective guidelines.

When an arrest of a person is made on the mere whim of a police officer, that act is simply punitive. While police officers have many important duties and responsibilities, punishment is not on that list. When punishment is extracted by the police, our system of constitutionally guaranteed freedoms fails, those citizens who are prey to it suffer and we all stand to suffer from such actions left unchecked and which should be prohibited by law.

In the context of the texting ordinance, this law should specifically prohibit enforcement by arrest.

Where Will This End?

Recently, I had the occasions to speak to a colleague who practices law in Honolulu. When I mentioned our new texting ordinance, he laughed. Explaining his reaction, he remarked that the originally written Honolulu law was so difficult to enforce and so easily challenged, it was amended to its current form-there, it is unlawful to touch or hold a phone in when driving a car. The traffic court trial docket there is growing. Drivers plugging in a phone to charge it are being cited.

This is not the first or last time a legislative body of any size is faced with a public safety issue which, by its very nature, requires careful reflection to address.

 

Here is a great source for more info.

 

Google

 

Kulp & Elliott accepts cases in Charleston, North Charleston, Mt. Pleasant, Summerville, Goose Creek, Hanahan, Moncks Corner, Ladson, James Island, West Ashley, Folly Beach, Sullivans Island, Isle of Palms, Awendaw, McClellanville South Carolina.