New Texting While Driving Law In Virginia

Posted on June 25th, 2013, by Livesay & Myers, P.C. in Criminal Defense. 1 Comment

TextingIn my last blog posting, I provided a short overview of several new laws that take effect in Virginia on July 1, 2013. Rarely have I received so many questions as I did regarding the new law in Virginia against texting while driving—from colleagues, friends and family. There is little argument that distracted driving can be dangerous, and that the proliferation of smartphones in the hands of drivers raises legitimate public safety concerns. But, is the Virginia ban on texting while driving the solution? And what exactly is prohibited by the new law?

In this article, I will address the most important aspects of the new Virginia law against texting while driving, including the many questions raised or left open by the statute, before offering up my educated guess as to how things will most likely play out with the new law.

The initial question is, what is prohibited under Virginia’s ban on texting while driving? The law, found in Virginia Code Section 46.2-1078.1, defines two distinctly different offenses:

Entering Text. 46.2-1078.1(A)(1) makes it a traffic infraction to “[m]anually enter multiple letters or text” into your phone “as a means of communicating with another person.” In other words, if you enter more than one letter into a device to be transmitted to another person, you are guilty of texting while driving. This would include sending texts or e-mails as well as posting updates to Facebook or Twitter. It would not appear to include typing in numbers or otherwise dialing someone on the phone. It would also appear not to include: typing messages or notes to oneself; typing in the URL of a website or entering a search into a browser; using a music, podcast or radio app; or entering information into a GPS app.

Reading Text. 46.2-1078.1(A)(2) makes it a traffic infraction to “[r]ead any email or text message” transmitted to your phone or stored within your phone, “provided that this prohibition shall not apply to any name or number stored within the device nor to any caller identification information.” If you read an email or text message that you receive from another person, you are in violation of this section. This provision specifically excludes reading names from your contacts, as well as reading the name or number on the screen’s caller ID. It appears to also exclude reading an e-book, digital newspaper or other publication, or reading from a website, since those are technically not e-mails or text messages (although I foresee the argument from law enforcement or prosecutors that such content is “text” that is “messaged” or transmitted to your device from another person or is stored in your device).

Exemptions. 46.2-1078.1(B) provides specific exceptions for: (a) operators of emergency vehicles “engaged in the performance of [their] official duties,” (b) operators of “lawfully parked or stopped” vehicles, (c) “the use of factory-installed or aftermarket global positioning systems (GPS) or wireless communications devices used to transmit or receive data as part of a digital dispatch system,” and (d) any driver using their phone to report an emergency.

Punishments. A first offense carries a $125 fine. Second or subsequent offenses will carry $250 fine. If the texting while driving is associated with reckless driving behavior, the reckless driving conviction will carry a mandatory minimum fine of $250.

Enforcement. The real question is, how will law enforcement enforce this new law? Texting while driving has technically been illegal in Virginia since 2009, but until now it has been only a “secondary” offense, meaning you could only be charged if the officer had cause to stop you for some other violation and then also discovered that you were texting. Effective July 1st, texting becomes a “primary” offense– officers will be able to pull you over specifically on suspicion of texting while driving. If you are so distracted by texting that you are swerving out of your lane, speeding or even driving exceedingly slowly, or holding your device up in plain view through a window and reading or typing into it, those would be traffic offenses themselves that would allow an officer to make a stop. But what if there is no obvious traffic violation?

One police officer told me that he is going to be watching for drivers with their heads or gazed directed downward. Which raises the question: how long must a downward gaze last to be a signal that a person is texting or reading unlawfully? One second, five seconds, more?

And, once an officer makes a traffic stop, will he have the right to inspect your phone? Will he be able to peruse through the phone to check when messages were sent or received? Is he entitled to open email apps, browsers, or your recent call list to determine whether you were using your device in violation of the law?

And what about voice-to-text? An officer might seen a text message sent just before he pulled the driver over– but most every modern smartphone supports hands-free messaging. How could the officer (or later, the court) possibly know whether the driver typed in that text message, or “spoke it”? Along those lines, will officers need special training to understand the operating systems of increasingly sophisticated smartphones?

Other Questions. The questions raised by this new law go on and on. Can the officer have the driver and any passengers exit the vehicle while he examines the driver’s phone? And what if the officer comes across text messages or emails that suggest other unlawful conduct? Can the officer then direct his investigation into that new direction? Can the officer confiscate the driver’s phone as evidence pending trial?

Another interesting question: if an adult sends a text to a juvenile who is driving who then reads and responds to that message and gets pulled over, can the adult be in jeopardy for contributing to the delinquency of a minor?

Finally, are we giving officers, as one Virginia delegate shared his concern with me, too much discretion with this law? Are judges going to even want to listen to all of this technological mumbo jumbo?

Bottom Line. I have represented hundreds of Virginia drivers for all manner of offenses since the first texting law was put into place in 2009. I can count on a single hand the number of texting tickets I have seen. The reality is, all of these questions may be much ado about nothing, and we won’t see an increase in tickets written. Maybe the threat of this new law will accomplish its intended goal, which is to encourage drivers to limit the use of their smartphones in the car and focus on the road. Unlawful or not, that is probably the best idea of all.

See also: Why Hire an Attorney to Fight a Traffic Ticket?

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Livesay & Myers, P.C. is a law firm with offices in Fairfax, Manassas, Leesburg and Fredericksburg, Virginia.

One response to “New Texting While Driving Law In Virginia”

  1. @Casey Cosby: point well-taken; to really eliminate distracted driving, you have to eliminate driving because you won’t ever get rid of distractions. Whether its texting, fiddling with the stereo, another vehicle, or some wildlife on the side of the road, you can’t stop yourself from something catching your attention 100% of the time.

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