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Distracted Driving: Can Cell Phone Records Be Used as Proof?

undefinedDistracted driving has become one of the most significant contributors to automobile accidents because of “smart” tablets and cell phone use while driving. Many activities like eating and drinking, listening to music, programming street addresses into GPS, and many others are distracted driving. However, the numbers indicate cell phone use is by far the deadliest. Distracted driving was the primary cause of 3,450 deaths in 2016 and millions of injuries and property damage accidents.

Texting and reading texts while driving can be much worse than talking on a phone while driving. The US DOT’s distracted driving website states, “Sending or reading a text takes your eyes off the road for 4.6 seconds. At 55 mph, that's like driving the length of an entire football field, blindfolded. It's extraordinarily dangerous.” Regardless of whether you agree with these findings or not, texting while driving is dangerous and illegal.

Attorneys on both sides of this issue have tried to use cell phone and internet data records to prove their client’s innocence or the guilt of those accused. You could make a compelling argument for either side. Should the state be allowed to pry into our private exchanges to prove we were guilty of distracted driving? Should a driver be able to provide limited access to prove innocence? Is the driver’s right of privacy more important than public safety?

The Fourth Amendment to the US Constitution seems to imply that it is. The amendment doesn’t directly state the government can’t invade your privacy by checking your phone records, it does outlaw unreasonable searches. There weren’t even phones when the Constitution was written. But, the question becomes, what is unreasonable and where do we draw the line?

Some would argue seatbelt and helmet laws are illustrations of laws that promote public safety, while others would argue those only protect the user, and it should be a personal choice. Distracted driving, however, affects everyone’s safety. Both talking and texting are dangerous while driving, and distracted driving of any kind can, and often does, lead to fatal accidents.

California’s Distracted Driving Law

On January 1, 2017, Assembly Bill (AB) 1785 became law. That law is now, CA Vehicle Code (CVC) 23123.5, Driving Offenses made it illegal to hold or operate a communications device while driving unless the equipment was tied into the vehicle’s system so that hands-free or voice-activated use was allowed.

Alternately, the phone or device could be dashboard mounted so that it does not interfere with the view of the road, and a single tap or finger swipe could activate/deactivate the device. This law includes all communication devices such as tablets, laptops, and GPS.

If convicted of a first offense, you will receive a base fine of $20, which will cost you about $150 after state and county surcharges. The second and subsequent offenses require a base fine of $50 if convicted, which will cost closer to $250. There are currently no Negligent Operator Treatment System (NOTS) points for a distracted driving conviction.

Merely picking up or holding a cell phone can get you a ticket in California. Law enforcement is not going to want to hear, “I wasn’t using it, I just picked it up to check who sent me a text.” Although it was previously possible to use your cell phone records to prove you did not use your phone during the period when you were ticketed, the wording of the new law makes it illegal to hold the device while driving. Use is restricted to a single finger swipe or voice activation of a mounted device. The best course of action is to pull over, make your call, read or answer your text, and then resume driving.

Distracted Driving in a CMV Can Be Expensive

A CDL holder convicted of a cell phone violation is subject to a civil penalty of $2,275 from the FMCSA. Additionally, the driver will get assessed ten severity points for texting or using a hand-held phone while driving a CMV. Likewise, carriers will get assessed a maximum ten CSA points for requiring or allowing drivers to use hand-held devices while driving. A subsequent conviction within a six-month period will cause the assessed ten severity points to get multiplied by three, which would give the driver or carrier 30 CSA points.

Always consult with a traffic ticket attorney before paying a fine for a traffic ticket no matter how insignificant it might seem. A cell phone conviction can affect your employment prospects. CDL holders can have their driving career interrupted with JUST a single conviction.

Traffic Lawyers Who Assist Drivers in Tulare County

When you receive a cell phone ticket or any traffic ticket in Tulare County, you must resolve the ticket before the court date or appear in Visalia or Porterville Traffic Court. Most drivers will just pay the fine, and that might be a wise decision since there are no NOTS points attached, but the wisest decision is to call Bigger & Harman, (661) 349-9300, before making the decision. Not all traffic tickets are cut and dry, and there are technicalities in some cases.

Particularly in the case of CDL holders, who might get terminated from employment if they get convicted of distracted driving. Fleet managers are very protective of their fleet insurance rates. Traffic ticket convictions are one of the primary reasons for the more than 90 percent turnover rate at large, high-paying trucking firms.

Other than a cell phone ticket, which carries no NOTS points in CA, we can frequently get a driver a no-point conviction. You might still be required to pay a fine, but when there are no NOTS points attached, your insurance premiums stay the same. Likewise, we might even secure a total dismissal of the ticket.

Se habla Español 661.349.9755.

Send an email to attorney@biggerharmanlaw.com.

References:

CVC 23123.5, Driving Offenses

The Overdriveonline.com article, “FMCSA Adds Phone Use Violations to CSA”

The US DOT website article, “Distracted Driving”

The LIVEScience article, “Right to Privacy: Constitutional Rights & Privacy Laws”