OK’s Texting & Driving Prohibition: A Slippery Slope?

July 6, 2016

On November 1, 2015, a new law went into effect in Oklahoma prohibiting any person from texting while their vehicle is in motion. To be clear, I believe texting and driving is very dangerous. Frankly, it should be illegal. However, the way the current law is written creates the potential for law enforcement to use it as a way to mask unreasonable search and seizure violations.

A BRIEF SUMMARY OF TITLE 47 O.S. § 11-901d

Title 47 O.S. § 11-901d makes it unlawful for any person to operate a motor vehicle within the State of Oklahoma while using a hand-held “electronic communication device” to manually “compose,” “send,” or “read” an electronic “text message” while the motor vehicle is in motion.

Under this law, an “electronic communication device” is defined as an electronic device that permits the user to manually transmit a communication of written text by means other than through an oral transfer or wire communication.

“Compose,” “send,” or “read” in the context of this law refers to the manual entry, sending or retrieval of a text message to communicate with any person or device.

That which constitutes a “text message” under the law includes a text-based message, instant message, electronic message, photo, video, or electronic mail.

A violation of this statute is punishable by a $100.00 fine. The Oklahoma Department of Public Safety shall not record or assess points on any person’s driver’s license for a violation of this law.

An exception to violations of this statute exist if a person is using a cellular telephone or electronic communication device for the sole purpose of communicating regarding an imminent emergency situation. Under this exception, a person may communicate with an emergency response operator, a hospital, physician’s office, or health clinic, a provider of ambulance services, a provider of firefighting services, or a law enforcement agency. This exception seems far-fetched, since most people “call 911,” not “text 911.”

The Standard for Temporary Seizure of a Vehicle

In order to stop a vehicle for a law violation, the law enforcement officer must have a reasonable suspicion that a violation of the law has taken place. For instance, to pull a vehicle over for an expired tag, the police officer must have a reasonable suspicion the vehicle’s tag is expired (he/she saw the tag was expired, the tag contained a color associated with expiration being a previous month, etc.). Once the stop is initiated, the scope of an officer’s investigation must be limited to discovery of evidence of the crime for which the person was stopped. An exception to this rule occurs if the officer gains probable cause during the stop to believe another crime is being committed (the officer smells marijuana, the officer sees an open liquor bottle in a cup holder, etc.).

POTENTIAL FOR ABUSE

What Constitutes a “Reasonable Suspicion” a Person is Texting and Driving? How Far Does the Scope of an Officer’s Investigation Extend in this Situation?

The answers to these questions are central to the potential for law enforcement abuse of this relatively new law. Is a person merely looking at their phone enough to temporarily seize a person and their vehicle under this law? What if someone is using their phone for directions?

Assuming a law enforcement officer has reasonable suspicion that someone is texting and driving, the next issue is how far does the scope of the officer’s investigation extend? Can the officer search the person’s entire cell phone? Is the officer limited to searching only text messages on the phone? Can the officer search all text messages on the phone, or is he/she limited to a search of only those messages dated the same day?

The bottom line is that title 47 O.S. § 11-901d is too vague, and does not answer any of these questions. In failing to give guidance to law enforcement regarding the scope of an investigation for evidence of texting and driving, the statute leaves these issues to the judgment of law enforcement, and creates the potential for abuse.

Since this statute is relatively new and does not impose a hefty penalty for violation, these issues have not been heavily litigated in court. However, I expect to see cases challenged in the near future where law enforcement finds evidence of other crimes on a cell phone during their investigation to gather evidence of texting and driving.