The 7th Circuit issued an opinion (h/t Indiana Law Blog) overturning a conviction where the police officer’s initial stop of the defendant was based on Indiana’s texting-while-driving law, IC 9-21-8-59, the relevant part of which reads:
(a) A person may not use a telecommunications device to:(1) type a text message or an electronic mail message;(2) transmit a text message or an electronic mail message; or (3) read a text message or an electronic mail message;while operating a moving motor vehicle unless the device is used in conjunction with hands free or voice operated technology, or unless the device is used to call 911 to report a bona fide emergency.
Essentially, the officer stopped the suspect because the guy was messing with his phone on the highway. After the stop, the officer found 5 pounds of heroin in the guy’s car. But, it turned out the suspect wasn’t texting; rather, he was looking for music — which, as the law is written, is not illegal. The 7th Circuit determined that the officer did not have probable cause to stop the car and, therefore, the search was illegal. The State argued that since the guy was looking at his phone, and not the road, while driving, the officer had probable cause to stop the vehicle. The 7th Circuit disagreed. The law only prohibits texting and looking at e-mail. That means there are a great number of legal activities in which the driver could have been engaged while looking at his phone (e.g. making and receiving phone calls, inputting addresses, reading driving directions and maps with GPS applications, reading news and weather programs, retrieving and playing music or audio books, surfing the Internet, playing video games—even watching movies or television.) The officer had no probable cause to believe the motorist was engaged in texting rather than one of those legal activities.
Back in 2009, I commented on a bill that had language similar to the language that ultimately passed:
This bill highlights some of the difficulties in drafting legislation. Sometimes it’s tough to keep up with technology. The bill changes the definition of “telecommunications device” to include “The term includes a: (1) wireless telephone; (2) personal digital assistant; (3) pager; or (4) text messaging device.” But, at times, you’ll find the difficulty of keeping up with new technology is really a matter of confusing the bottle with the wine. Often enough, even if the drafter recognizes this problem, there isn’t much to be done if the courts or the legislator are focused on the bottle.
In this case, the problem being addressed is the fact that the driver isn’t paying attention to the road. Whether the attention is focused on a text message, a cell phone, a book, a CD case, a map, or a screaming child isn’t terribly important in terms of the actual risk of driving while not paying attention. But, the way the politics are set up and probably the way the case law has developed, simply attempting to penalize “driving while distracted” probably would not be effective, even though that’s the real problem.
So, maybe back to the drawing board on this law.