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Texting While Driving and the 4th Amendment

Starting Nov. 1, 2015, use of cell phones to send or receive text messages while driving has been outlawed. Municipalities may adopt ordinances criminalizing the action as well, though the municipality’s fine plus court costs cannot exceed $100. Exceptions to the prohibition exist for fire and police employees who are using their phone during an imminent emergency situation.

This alert will cover the elements of the offense as well the potential for liability exposure under the 4th Amendment during a traffic stop to investigate this offense.

Elements of the Offense

The offense is created at 47 O.S. §11-901d(A). The elements of the crime are: 1) the person is operating a motor vehicle, 2) they are doing so on a street or highway within the jurisdiction, 3) the driver is using a hand-held electronic communication device, 4) the use of the device is to manually compose, send or receive electronic text message, 5) the action is occurring while the vehicle is in motion.

Note that the driver must be actually driving on a street or a highway – texting while driving on private property is not illegal. Also, texting while stopped is not an offense. Composing a text message via a hands free system (e.g. Siri) is not illegal. Finally, the act of using a phone while driving is not enough – the driver must be using the phone to compose, send or receive text messages. Talking on the phone, web-browsing, using a GPS, etc, was not criminalized.

4th Amendment Concerns

It will be tempting for Officers to demand visual confirmation from drivers of what they were doing on their phone while they were driving. This is fraught with liability peril in light of the recent U.S. Supreme Court opinion in Riley v. California, 573 U.S. __, 134 S.Ct. 2473 (2014). Riley held that a warrant must be obtained to search the contents of a cell phone (in that case, the Court rejected the attempt to apply the search incident to arrest exception).

There is a fine line between seeking consent to search and mandating that the driver permit a search. This general rule applies to the cell phone – Officers could seek voluntary consent to look at the phone, but should not order the driver to unlock their phone so that the Officer can see for him or herself.

This Loss Bulletin is intended to provide municipalities with guidance on the potential for liability exposure as Officers attempt to enforce the mandates of HB 1965 – the Trooper Nicholas Dees and Trooper Keith Burch Act of 2015 which criminalized texting while driving.

Texting while Driving and the 4th Amendment was written by Matt Love, OMAG Associate General Counsel & Claims Director, You may contact the author at mlove@omag.org.  The information in this bulletin is intended solely for general informational purposes and should not be construed as or used as a substitute for legal advice or legal opinions with respect to specific situations, since such advice requires an evaluation of precise factual circumstances by an attorney. OMAG does not represent or endorse any group, site or product that may be mentioned in this article.

                                                                                October 27, 2015

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