Cellphones have become such an integral part of our lives that they are with us everywhere we go. However, texting while driving is illegal and is a moving violation. This is sometimes called distracted driving. Because cellphones require taking the eyes off the road police officers are always on the lookout for people looking at their phones while in traffic. As a result, texting charges are becoming more common in Fairfax County. We can help and offer a free consultation to discuss your case. Give us a call at 703-273-4100 or use the contact form below.
Use of Handheld Personal Communications Device
Virginia Code §46.2-1087.1 forbids using a handheld personal communication device (cellphone) while on a highway to manually enter letters or text to communicate with another person. It also does not allow reading a message, such as an email or text message, that was sent to you or is otherwise stored on the phone. The statute does exclude those instances when you are looking up a name or phone number already stored on the phone (presumably to make a phone call).
The statute goes further to prohibit simply holding a phone at all while in a highway work zone. Consequently, while you are normally permitted to hold a cellphone while driving, the law does not allow holding a cellphone in a highway work zone. There are exceptions in the statute regardless of where you are that allows reporting an emergency, use of a factory-installed or after-market GPS, or in those instances in which you are lawfully parked or stopped.
A first offense is $125 fine and 3-points for DMV purposes. A second offense or more is a $250 fine (same DMV points).
Defenses to Texting While Driving
The most obvious defense in these cases is whether or not the police officer can prove you were texting or reading a message on your phone. In many cases, they seek to prove texting while driving by telling the Judge they saw the person using their fingers as if they were typing. They contrast this from someone clearly trying to find a phone number and then putting the phone up to their ear to make the call or putting it down and beginning to speak with eyes back on the road. Many people will use the "GPS" argument in Court to no avail because a Judge will find the specifics of the person's cellphone use inconsistent with the police officer's observations.
If a person is suspected of texting or reading on their phone a police officer will many times demand that you show them your phone so they can see what you were doing to corroborate their suspicions (and most people will comply). However, you do not have to allow an officer to search your phone. They are only allowed to simply look at it to ensure it does not pose a threat to them. In Riley v. California (2014), the United States Supreme Court held that a cellphone poses no immediate danger to a police officer and carries many people's private information. As a result, without consent, a police officer must get a search warrant to search a cellphone. Therefore, if a police officer asks to see your phone, you may politely decline. They can ultimately get a search warrant if they so choose, though, it is highly unlikely they will use their time and resources to go through the trouble unless they think it is being used for criminal activity such as drugs.
Hiring A Lawyer For Your Texting Case in Fairfax County
In many texting cases, depending on the client's driving record, we will have our clients take a driver improvement course prior to the court date and negotiate the charge down to a no-point non-moving violation. In most cases the client does not need to be present in court for this. Prosecutors know that cellphones are almost glued to citizens so they are willing to work with us in many of these cases provided the person did not appear to be a hazard to the road. We work with the same Prosecutors and police officers and appear before the same Judges everyday and we can help.