Ann Arbor, MI is considering a new ordinance banning operating cell phones and most other electronic devices while driving a car. I agree with the spirit of the law, but it seems to be overly broad.
One part of the article especially concerns me, though:
How could I do this? Is this kind of provision even legal and/or constitutional?
IANAL but I expect that this is sloppy reporting.
I think (but don’t know for sure) what is going on is that if you are pulled over for this violation and it goes to court, the police officer is going to testify that he was an eyewitness to the act. In such a case, you have to mount a defense; the police officer doesn’t have to produce a photograph of you using your iPhone. Eyewitness testimony from a police officer is pretty powerful. It is not any different from getting a ticket for running a stop sign.
I am guessing that if you were ticketed, appeared in court, and the officer failed to appear, that your case would be dismissed. I would like to hear a lawyer’s opinion but I don’t think that the ticket per se acts as testimony from the officer.
What about producing a bill showing no charge for the ticketed date and time?
That would prove only that you weren’t using that particular specific phone – not that you weren’t using some other cellphone.
as mentioned, it’s inaccurate reporting (not really sloppy) and a poor understanding of burdens of proof and persuasion.
the state always has a burden of proof in a criminal case. however, once they’ve done that, which they will easily do in this case, you’re going to need to offer some kind of evidence to the trier of fact that their supposed proof is erroneous.
Got me there. So, I’m driving along, and my cheek is itchy. I scratch it. Cop says I was on a cellphone and tough shit?:dubious:
these laws weren’t merely crafted for citizen safety - they’re really good tools for giving cops probable cause to pull over whoever they want on the highway and do a little “voluntary” poking around.
I wouldn’t be so glib about the extent to which a corrupt/dishonest police officers can manufacture charges against people (especially petty offenses), either
[Moderating]
Since this thread has been reported as a request for legal advice, I will note that since it is requesting general information on a legal question, not asking for advice on a specific individual case, as such it is permitted under GQ rules.
Colibri
General Questions Moderator
I have been on the receiving end of corrupt/dishonest cops. Glib? Nope, color me cynical.
I seem to recall reading newspaper accounts of people convicted of texting/calling while driving on the basis of just such evidence. Why couldn’t the defendants claim that it wasn’t them using the phone?
First time (in awhile at least) I’ve seen someone flamed for agreeing with the other party.
I think it would be very hard to prove innocence in these cases; I’m guessing that they’re counting on most people just paying the ticket (because, let’s face it, it’s going to be a fair cop the vast majority of the time). I think the purpose of these laws are also to raise public awareness of a very dangerous common activity, and they open the door for serious charges when something bad happens as a result of someone provably using an electronic device while driving.
Well, for one thing, with the ubiquity of different “smart” phones and the increasing functionality of handheld communications devices, there are plenty of ways to “use” a cellphone in a car without actually being on a call.
You could be scrolling through old text messages, looking up an address in your contacts section, checking out a photo stored in your phone, or using your cellphone as a music player and searching for tunes.
Here’s the text of the amendment to the Ann Arbor code:
Link (not sure if that’s a permanent link or not).
Wait though, on Law and Order they just pull your usage records, wouldn’t that effectively prove you either were or were not on your phone?
That’s not what I meant. Why can’t the defendant just claim that someone else was using the phone, no matter what kind of usage it was?
The first evidence is that an officer witnessed use of a phone. If someone mounts a defense, then usage records from the phone company can corroborate the officer’s statement. However, lack of usage records do not necessarily excuse one from the allegation. There are many uses that do not get recorded on the phone companies records.
The biggest evidence to overcome is the officer’s eyewitness statement.
Not that I doubt you, but what would some of them be?
Checking one’s contacts or stored texts for an address to input into the GPS. Typing out a text or phone number that doesn’t get sent because one was pulled over. Reading previously downloaded emails. Searching for an album to play over your car’s stereo.
Unless the law is older, they don’t just ticket for phone calls. They ticket for using a handheld device while operating a vehicle.
I agree with you, but couldn’t one provide the cell phone call log showing that no calls were made nor received during that particular block of time to “prove innocence”? Of course that wouldn’t work if you really were on the phone, but that is kind of the point.
ETA: And once again I should read the whole thread before piping up, someone will have always said it first and better than I. 
Well, one thing would “help”. The cop could confiscate any handheld device in the car at the time of ticking.If THAT phone/eyepod/whatever later shows no activity, then your in the clear. Or barring that, require you to make a call, say, to the police headquarters right then and there. That in combination with records from your phone service/internet provider/operating system/GPS/whatever would be good proof of which phone you personally had control of at that time.
If the records then show the only activity between (or very shortly before) when the cop pulled you over and your required call to headquarters was the call to headquarters, you’d then be in the clear.