09/18/2013

Val Van BrocklinCop Gumbo
with Val Van Brocklin

Are cell phone searches the new breathalyzer?

Texting while driving is difficult to prove — should implied consent laws be applied to cell phone searches?

Distracted driving is being touted as the new DWI for good reason — it’s more deadly. Consider this:

•    Using a cell phone (handheld or hands free) extends a driver's reaction time as much as a .08 BAC
•    Texting while driving has surpassed drinking and driving as the leading cause of teen accidents and deaths 
•    Driving while texting is six times more dangerous than driving while intoxicated
•    You are 23 times more likely to crash if you are texting while driving

Unfortunately, knowledge doesn’t always yield wisdom, with 50 percent of high school students and 47 percent of adults admit texting while driving. Furthermore, 20 percent of teens and 10 percent of parents admit that they have extended multi-message text conversations while driving.

Distracted Driving Laws
The good news is we seem to recognize our weakness. Recent surveys

•    A majority of respondents support laws restricting any type of cell phone use while driving
•    80 percent support a ban on text messaging or emailing while driving

With this support have come laws aimed at distracted driving.

•    Handheld Cell Phone Use: 12 states, D.C., Puerto Rico, Guam and the U.S. Virgin Islands prohibit all drivers from using handheld cell phones. Beginning October 2013, these laws will be primary enforcement -- drivers may be cited without any other traffic offense present.

•    All Cell Phone Use: 37 states and D.C. ban all cell phone use by novice drivers.

•    ​Text Messaging: 41 states, D.C., Puerto Rico, Guam and the U.S. Virgin Islands ban text messaging for all drivers. All but 4 have primary enforcement. An additional 6 states prohibit text messaging by novice drivers.

But what good are these laws if they can’t be enforced?

Tough to Enforce
An Ohio ban on texting and driving was extolled as one of the toughest in the nation. But records show few drivers have been cited and many citations have been dismissed by judges.

“Unless you have an admission by the person, it can be hard to prove what exactly they were doing with the phone,” said Melanie Tobias, an assistant city prosecutor. Suspected texters know to keep their phones out of sight and to return to the home screen when they’re stopped, Perry Township Police Chief Robert Oppenheimer said.

In Columbus, a search warrant is required to inspect a phone. “For a misdemeanor violation, it’s kind of hard to get a warrant,” said Lt. Brent Mull, who oversees the Columbus police traffic division.

Joe Farrow, head of California's Highway Patrol, said his officers must directly observe a driver texting (as opposed to just looking down) for several seconds to pull him over, which is not easy on a freeway.

That said, highly visible enforcement makes a huge difference. Syracuse, New York and Hartford, Connecticut had cops issue dramatically more citations for two weeks, and mobile phone use while driving fell sharply in both places.

If highly visible citations make a big difference, how many lives might be saved if real prosecution were used as a deterrent?

Implied Consent
All states have laws that a licensed driver gives his implied consent to field sobriety tests and/or a breathalyzer or similar manner of determining blood alcohol concentration when police have reasonable grounds to believe the driver is impaired.

The rationale is that driving is a privilege and the state has a legitimate interest in preventing deaths, injuries, and property damage from dangerously impaired drivers. Without evidence of field sobriety tests and blood alcohol content, DWI cases would be impossible to prove, absent admissions or a confession.

Because of the body’s metabolism of alcohol, evidence might be lost during the delay necessary to obtain a warrant, the basis of Schmerber v. California, 384 US 757, 770 (1966). But in Missouri v. McNeely (2013),  the Supreme Court refused to adopt a blanket rule that the body’s oxidation of alcohol alone always provided exigent circumstances to justify a warrantless blood test.

The question posed here is whether the same reasoning should apply to texting while driving. New Jersey legislator James Holzapfel seems to think so. He’s proposed legislation that would let cops confiscate cell phones from drivers in an accident involving death, injury or property damage if they had "reasonable grounds" to think the driver was talking or texting while driving. The officers would thumb through the phone’s history, then return it.

The argument that, unlike blood alcohol content, evidence of texting while driving could be obtained through a subpoena or warrant served on the cell phone service provider is only true of messages that actually get sent or received. If the distracted driving occurs, as it most likely would, while the driver is in the process of texting rather than after the text is sent, that evidence wouldn’t be in the cell phone records. If the driver gets charged for messages sent to his phone, the bill will likely show when it was sent, but not necessarily when it was read.

As discussed last month, there’s judicial debate about the Fourth Amendment’s reasonable expectation of privacy as applied to cell phones.

But neither the Fourth nor the Fifth Amendments have precluded implied consent laws requiring drivers to submit to field sobriety and chemical tests of their blood alcohol.

Implied consent laws to combat distracted driving could be circumscribed, as the proposed New Jersey law, to what citizens and their representatives thought reasonably necessary to combat these preventable injuries and death. If we’re concerned about protecting teens, the war on drugs and gun violence takes a back seat to distracted driving.

You’re on the frontline of the carnage. What do you think?

About the author

As a state and federal prosecutor for over 10 years, Val’s trial work has been seen nationally on ABC'S PRIMETIME LIVE, Discovery Channel's Justice Files, in USA Today, The National Enquirer and REDBOOK.

Described by Calibre Press as "the indisputable master of entertrainment," Val is now an international law enforcement trainer and writer who appears in person and on TV, radio, video productions, webcasts, newspapers, books and magazines. She has been a regular contributor to a number of law enforcement publications and has been featured in the Calibre Press Online Street Survival Newsletter, Police Chief magazine, The Law Enforcement Trainer magazine, and The Royal Canadian Mounted Police Gazette.

When she's not working, Val can be found flying her airplane with her retriever, a shotgun, a fly rod, and high aspirations. Visit Val at www.valvanbrocklin.com and contact her at info@valvanbrocklin.com.

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