I guess my question about the
Primary offense is how can you tell someone is actually texting? I have an iPod and I play songs and podcasts that I change while driving, just like someone fiddling with radio stations. Or I might be
looking at the phone to make a call. These actions aren't illegal, after all.
Just curious how that is going to work in real world.
That would depend on how the law is written. One of the 'burbs here has an ordinance that is modeled after those of other jurisidictions across the country. The media reports it this way:
The XXX City ordinance bans the use of wireless communications devices to view, send or compose an electronic message or manually engage other application software while operating a motor vehicle upon any roadway in the city, including when stopped or standing."
But the actual ordinance reads thus:
Sec. 58-138. - Use of wireless communication device while operating a motor vehicle.
(a) Definitions. For the purposes of this section, the following words and phrases shall have the meanings ascribed to them:
(1) Electronic message means a self-contained piece of digital communication that is designed or intended to be transmitted to or from a wireless communication device. An electronic message includes, but is not limited to, a text-based communication, such as electronic mail, a text message, or an instant message, or a command or request to access an internet site.
(2) Operate means to drive or be in physical control of a motor vehicle.
(3) Operator means a person who drives or has physical control of a motor vehicle.
(4) Wireless communication device means a device that uses a commercial mobile service, as defined by 47 U.S.C. § 332.
(b) Offense. It shall be unlawful for an operator of a motor vehicle to use a wireless communication device to view, send or compose an electronic message or manually engage other application software while operating a motor vehicle upon any roadway in the city, including when stopped or standing.
(c) Affirmative defenses. It is an affirmative defense to prosecution of conduct prohibited by subsection (b) if:
(1) An operator of a motor vehicle uses a wireless communication device strictly to engage in a telephone conversation, including dialing or deactivating a phone call;
(2) An operator of an authorized government vehicle uses a wireless communication device to respond to an emergency while acting in an official capacity while operating an authorized government vehicle;
(3) An operator of a motor vehicle uses a wireless communication device while stopped or standing at a position parallel to and as close as possible to the right-hand edge or curb of a roadway where parking, standing or stopping in a nonemergency situation is not otherwise prohibited; or
(4) An operator of a motor vehicle uses a wireless communication device to:
a. Operate only a global positioning or navigation system;
b. Obtain emergency assistance by contacting an emergency response service, including a rescue, emergency medical, or hazardous material response service; a hospital; a fire department; a health clinic; a medical doctor's office; an individual to administer first aid treatment; or a police department;
c. Obtain emergency assistance to prevent a crime about to be committed;
d. Report a traffic accident or serious traffic hazard; or
e. Communicate with the reasonable belief that a person's life, safety, or property is in immediate danger.
(d) Conflicting regulations. To the extent that any clause, phrase, provision, sentence or part of this section conflicts with V.T.C.A., Transportation Code § 545.424, regarding the use of wireless communication devices while operating a motor vehicle by minors; or V.T.C.A., Transportation Code § 545.425, regarding the use of wireless communication devices in school crossing zones, this section does not apply
This ordinance is based on a model ordinance that someone drew up, and the same, or very similar law, is in effect in a lot of places across the country. In some places they add that the term
Electronic message does
not mean a telephone call. IMO that means making a telephone call is an exemption to prosecution, and the burden is on the state to prove you were not making a call. This particular ordinance does not make that distinction/exemption, but I'm certain that it is not intended to include calls, nor would it be used that way. However, it does provide only for an
affirmative defense on making calls. That means that the defendant has to claim it, and
prove it, in order to take advantage of it.
I would imagine a typical enforcement activity might include an officer observing what looked like texting, and in his investigation asking, "What were you doing with your phone?"
If you claimed "making a call", and the officer felt that was not the case, I think it would be reasonable to ask to see the proof. You do have a Constitutional right to deny that, in which case his choice would be to either give you a verbal warning, or write a citation and let the judge or jury decide who they believe. Of course since making a call is only an affirmative defense, the officer does not have to do anything other than charge you with the offense, although many will use their common sense and let you slide if they conclude that you would have a good shot of swaying the jury on the affirmative defense.
The state only has to prove its case beyond
reasonable doubt, not to a certainty and not to exclusion of any doubt. And, at least in Texas, the state does not have to negate the existence of the affirmative defense in charging you. In other words, if you want to claim you are innocent because you were making a call, checking your GPS, or whatever,
you will have to introduce the defense at trial, and prove it by a preponderance of evidence. That is a greater burden on the defendant than a regular defense allowed under the law. If calling was a defense (as opposed to an
affirmative defense), then you would just have to raise enough reasonable doubt on the calling issue for a jury following its instructions to find not guilty.
If it were me I would come to court with a certified copy of my cell phone detailed billing to prove I wasn't texting or using an app at the time of the offense.
Was the groom nervous about that?
