Texas Texting While Driving Ban Raises Questions for Enforcement
On September 1, 2017, the Texas legislature passed a law banning the practice of “texting while driving” across the state. According to the Texas Department of Transportation, approximately twenty percent of car crashes in Texas is caused by “distracted driving,” which resulted in some 450 deaths and more than 3,000 serious injuries in 2016 alone.
The law prohibits drivers from reading, writing, or sending electronic messages while driving, and a violation is a misdemeanor punishable by a fine ($99 for the first offense and $200 thereafter). Emergency communications and messaging while the vehicle is stopped are exceptions to the law. Drivers under 18 were already completely banned from using cell phones, while all drivers are prohibited from using handheld devices in school zones and bus drivers may not use cell phones while driving if children are present.
Some Texas cities have either passed, or already have “on the books,” ordinances that are even more restrictive than the state law, though it is possible that the current Texas legislature will expressly preempt such ordinances during the current session. (The Texas Senate passed such a preemption bill in 2017 but it failed to become a law.)
All of these laws and regulations have a noble goal: to reduce traffic accidents and save lives. But a year and a half after the passage of the texting while driving ban, is the new law effective? Is it enforceable? Does it raise constitutional issues?
One of the most obvious flaws in the law is that it restricts texting but not other uses of a handheld device, such as operating a music or navigation app. These exceptions make the law quite difficult to enforce, because a police officer most likely cannot tell just by observing a driver whether he is texting or using the cell phone for some other approved purpose. Georgia saw its traffic fatalities rise under a texting ban but then decline after the legislature in that state instituted a complete ban on hands-free devices while driving. The Texas legislature so far has been reluctant to institute a complete ban.
The constitutional rights of drivers are also implicated by the texting ban. For example, if an officer sees a driver looking down at his phone, does the officer have probable cause to make a traffic stop? Could it be used as a pretext to stop drivers suspected of other unrelated crimes? Would it be reasonable for the officer to confiscate the driver’s phone and “search” it to see if the driver had been texting? The Supreme Court has ruled that the Fourth Amendment to the Constitution requires a warrant before a law enforcement officer can search the contents of a cell phone. In addition, requiring a driver to turn over her phone might violate the Fifth Amendment protection against self-incrimination, since the government would potentially use a record of the driver’s communications stored on her phone against her in a criminal case.
It remains an open question whether the texting while driving ban actually deters drivers from texting, though there is some anecdotal evidence that it may reduce the incidence of crashes. But with all the practical and legal issues that accompany the law, it seems likely that it will continue to be controversial both with the public and the legislature for years to come.
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