Virginia’s New Texting While Driving Law: Serious Enforcement Problems Outweigh Questionable Public Safety Benefit

by Jasmine McKinney, Women’s Rights and Public Policy Intern

As of July 1, 2013, law enforcement officers can pull you over for texting while driving.  While the ban on writing, sending, or reading text messages or emails while driving is not new under Virginia law, what is new is that these actions are now a primary offense, thus law enforcement does not need another reason to stop you (such as speeding or running a red light). The penalty for this violation is steep – a $125 fine for the first offense and a $250 fine for any subsequent offenses.  But, though distracted driving is a serious problem, this law, which invites constitutional violations and discriminatory policing, is the wrong solution.

Problem one – constitutional concerns.  Under the law, drivers can still use their phone as a GPS, to browse contact lists, or to read any caller identification information their phone displays.  When an officer encounters someone using a phone while driving, it may be difficult for the officer to determine whether the driver was using the phone for one of the numerous permissible uses or was in fact, violating the law.  Thus, there may be many situations in which the only way for the officer to determine whether someone violated the ban on texting while driving is to search the phone’s content.  While the officer can ask to conduct a search of a driver’s phone, the driver has the right under the Fourth Amendment to say no.  If the driver refuses to consent to the search, ordinarily the officer would have to have probable cause to get a warrant or an argument that an involuntary search is allowed by “exigent circumstances” or is a search incident to an arrest.  Neither seems a compelling argument in a stop for a traffic infraction.  Law enforcement officers are, therefore, in an untenable position – they can either enforce the law or respect the constitutional rights of Virginia drivers.  This is both an unfair burden placed on law enforcement and a dangerous threat to one of our most basic freedoms – the right to be free of unreasonable searches and seizures.

Problem two – vague or subjective laws can lead to or allow discriminatory policing.   The new texting law gives law enforcement officers additional undefined and discretionary powers to pull drivers over.  For example, the ban does not apply to a driver who is using their phone while “lawfully” parked or stopped.  The words “stopped” and “parked” are not defined anywhere in the law, however.   Further, the law states that drivers cannot manually type text “as a means of communicating with another person,” but only specifically mentions emails and text messages as items that cannot be read.  The law also does not apply to social networking applications or using a phone for other purposes, such as checking the weather or playing music.  Unfortunately, we know that people of color are stopped, ticketed, and searched more often than whites.  In 2008, the Bureau of Justice Statics (BJS) released its most recent report on contacts between the law enforcement and the public.  According to the BJS, African American drivers were about three times more likely than white drivers to be searched during a traffic stop.  The report also found that a greater percentage of both Hispanic and African American drivers received tickets during traffic stops compared to white drivers.  Thus, as history has shown us, laws such as the new texting ban can allow or result in discriminatory policing.

Problem three – choosing the right solution.  There is no evidence that a law banning texting while driving will actually make the public safer by reducing crashes. At the same time, there is some evidence that a law like the one just passed in Virginia may actually increase the likelihood of accidents.  In 2010, the Highway Loss Data Institute – an affiliate of the Insurance Institute for Highway Safety—released a report finding no reductions in crashes after such texting bans took effect.  In fact, the report found an increase in the number of distracted driver related accidents – a finding that paralleled findings in an earlier study of the consequences of bans on using hand held phones while driving.  These studies suggest that policy makers should not rely on a punitive approach that has been shown to be ineffective and possibly more dangerous; rather, Virginians public safety would be better served by focusing scarce resources on educating the general public about the dangers of distracted driving.

While this law may be well-intentioned, it raises serious concerns by opening the door to unconstitutional searches and seizures and discriminatory policing.  Want to learn more about and/or get involved with the ACLU of Virginia’s work to protect the constitutional rights of all Virginians?  Sign up for our E-News and/or Grassroots Lobbying Action Alerts.