SHOULD POLICE WRITE TICKETS FOR TEXTING WHILE DRIVING?

Everyday I drive to and from my office. Looking around in traffic I usually notice one thing – about half of the people in cars around me are glued to their phones as we steadily creep along. And I get it – our phones offer a much better source of entertainment than staring at traffic or listening to the radio. But as we all know, fiddling with our phones takes our attention off the road.

Right now texting while driving is what’s called a “secondary offense.” This means that in order to get a ticket for texting, the police officer has to pull you over for something else: speeding; failing to yield; running a red light; etc. So while texting while driving is technically illegal (as in “against the law” illegal) cops can’t pull you over just for doing it.

Several legislators have set out to change this and make texting while driving a primary offense. Here’s the text of the bill, which simply takes out the part that makes texting a secondary offense and calls it a primary offense. As you might have guessed, cops are big supporters of this push because more tickets = more revenue.

Some problems with this:

First, it’s no secret that cops use minor traffic infractions as pretext to pull over people they suspect are committing crimes. If a cop sees both a new Subaru and a mid-90’s Crown Victoria with custom rims and tinted windows roll through a stop sign, you can guess which car is getting pulled over and “consensually” searched.  Adding texting while driving to the list of primary offenses does two scary things. It hugely increases the cops’ power to pull over people, and once they pull them over it could give them a pretext to search a person’s phone for evidence that they were using it while driving.

Imagine a scenario where a cop pulls someone over because the cop thinks they were texting. The officer asks the person if they know why they were pulled over, the person says, as we all usually do, that they have no idea. So what does the cop say?

“I pulled you over because I saw you texting.”

And then:

“Hand me your phone.”

In that moment, do we really expect the person sitting on the side of 275, cop car behind them with lights flashing, to run through a constitutional analysis of whether or not the cop has justification to search their phone for evidence that they were using it while driving? Do we expect cops to really comply with the rigors of the fourth amendment when we give them a somewhat plausible reason to ask someone to give them their phone?

Yes, keeping people safe on the road is important. But maybe let’s think about what the unintended consequences are to people’s liberty before we go making new laws.