Just thinking out loud and not really thinking this through, but…
maybe take a picture of the cop with your phone while he’s writing you the ticket and text the photo to your someone so you can match the photo with phone and then to your cell phone records?
Well, I’m not going to lie: that’s damn interesting. I suppose I hadn’t thought about it that way and I definitely appreciate the insight.
I suppose the state just relies on the fact that no one will ever go to those lengths to beat a $200 ticket-- but someday they will piss off someone with nothing but time on their hands and it’ll be a big ol’ hot mess.
Quite legitimately though: thank you. That really was an interesting read.
Thinking out loud again…
Doesn’t the phone, itself, record its own usage?
You take a photo of the cop while pulled over and text it to someone. When in court, you use the photo and the text to establish the phone you have in court is the same phone you had in the car when pulled over.
You then show the court the call, text, and email history on the phone itself as proof there were no calls or messages sent or received by you in the minutes leading up to your taking the photo of the cop and your texting that photo to your friend.
Would that work?
Why is everyone assuming that “using” a phone means making a phone call? Since hands-free phones are legal, it seems it’s the actual handling of the phone that’s illegal. Even if you’re just picking it up to look at the time. And if a cop saw you with a phone in your hand, that’s pretty conclusive evidence that you were handling the phone.
Looking again at the statute, it does include “reading” as a use violation. That’s a toughie. You can’t prove you weren’t reading messages you had received earlier.
Again though, this is not what the law says. It’s posted back on page 1.
There is one intersection I used to go through where the left turn lane the other way backed up, and 2 or 3 people ran the red light turning left every traffic cycle. It slowed up the traffic my way. Near me there was is an intersection where someone ran the light almost 50% of the time - until they put in a red light camera, which has cut down the number of red light runners by a lot. And my wife was nearly killed by a red light runner. Most people may not run red lights, but most lights have red light runners at least once in a while.
I thought you said the law forbids you to “use” a phone while driving, and you were complaining that it doesn’t define what constitutes “usage”. Now you’re saying the law clearly only refers to making phone calls?
No, I was saying that it does very clearly define usage, but was complaining that even when I brought proof that I wasn’t “using” my phone, it was thrown out as hearsay. Meaning that under how the law is currently written, a citizen has no way of proving that they weren’t “using” the phone.
I guess I missed that part. Where is the exact quote that defines “usage”?
Post 27. As I say there, I was dinged for texting (since the phone was in my hand), not technically making a phone call.
If it looked like you were reading it, that’s enough.
*If it looked like you’re speeding, that’s enough.
If it looked like you’re drunk, that’s enough.
*
Wait. No, it isn’t. The cop has to present proof that you were, in fact, speeding. Or there is proof given that you were, in fact, drunk. In both cases, the defendant has ways to defend if innocent, as the burden of proof is on the officer to prove that their charge against you is correct. With this cell phone law, there’s no similar allowance.
With 20/20 hindsight you could have asked the cop to look at your text and call logs.
It’s too bad you got punished unjustly, but on the whole life has been a lot better without tons of people weaving around, leaving 10 car lengths, and cutting through three lanes of traffic to get to an exit because they were so into their call they never noticed.
It’s no different than the cop saying it looked like you ran a red light while you say the light was not red. It’s your word against his. The cop’s testimony is his proof. That’s enough to convict.
If it looked like you were reading, then that can be enough if the judge buys the cop’s testimony. Your defense is to present your own testimony and to cast doubt on the cop’s testimony through cross-examination. What exactly did he see and when? What was he in a position to see or not see? Etc.
The cop might say he saw you look while driving. When he approached the car, you had a cell phone in your hand. THEREFORE…
It would be up to you to ask whether the cop saw the phone in your hand at the moment you were allegedly looking down. If he could not see the phone in your hand, then how does he know you were reading anything?
As mentioned above, unfortunately call logs and the like are no defense against a “reading use” violation.
I actually did this. This is, to the best of my memory the exchange he and I had at the “scene”:
And then (after a bit of discussion about what constitutes “using” a phone and him saying- I swear, “I’m not sure what the law says about”) I got a ticket.
I mean, I get it: between seeing flashy lights and him walking up, I could have deleted any incriminating stuff from my phone, but the point is that I most certainly tried.
Let’s revisit the statute:
If I was in your shoes, in my defense, I would cross-examine the cop to get him to admit he was not in any position to witness and has no evidence that I was:
Based upon what he told you, all he saw was you “manipulating the buttons.”
Then you ask him in court if and how he knows whether you were
reading a telephone number or name in an electronic wireless communications device for the purpose of making or receiving a telephone call.
selecting a telephone number or name in an electronic wireless communications device for the purpose of making or receiving a telephone call
entering a telephone number or name in an electronic wireless communications device for the purpose of making or receiving a telephone call
He will be forced to admit he doesn’t know what buttons you were allegedly manipulating or for what purpose.
BOOM If I was the judge, you would have walked free and the legislature would be left to try to come up with a better statute.
It appears the law allows you to “set up” a phone call while driving, as long as you don’t actually MAKE the call while driving.
You had more presence of mind than I would have. It is too bad you pulled Sgt. Schultz there (I see nothing, nothing!)
I love your analyses throughout this thread- seriously, very interesting stuff.
It’s funny that you mention the officer’s ability to see what I was doing. My friend was actually in the car right behind me (we had just left a store). I drove past the officer, who was in a gas station, pointed toward the street. According to my friend (I didn’t even notice him at the time), the officer was actually back pulling away from a gas pump, not even at the little drive way of the station, where it meets the street. He pulled in between my friend’s car and my back bumper as the light we were at changed (he’s on a motorcycle), then immediately pulled me over.
My friend came with me to court. Nobody would hear anything I had to say. The judge just went on this huge rant, as I said in the OP, that I committed the most intentional, egregious, and evil thing since Hitler (ok, he didnt say EXACTLY that ;)). He wouldn’t even listen to the officer, who eventually started trying to defend me a little bit.
Thanks! The crappy thing about the statute is that “reading” can be a use violation. However, “reading a text message” is illegal but “reading a name for purposes of making or receiving a call” is legal.
Unless the cop can prove what the hell anyone is reading, how is the state supposed to enforce that law?
I guess you found your answer… just make shit up.