Virginia reckless driving- Oppose proposal to criminalize cellphone use while driving
Virginia criminal lawyer urges reversing our police state rather than adding further criminal laws to the books
Fairfax criminal lawyer/ DWI attorney opposing criminalization of cellphone use while driving
UPDATE: The below-detailed Virginia Senate Bill 860 failed to pass the Senate Transportation Committee, on January 18, 2017.
Virginia legislators Scott Surovell and Kaye Kory are sponsoring legislation to further restrict, penalize, and under many circumstances make jailable the use of cellphones while driving.
Virginia law already penalizes unlawful cellphone use while driving, as a law infraction that applies a fine. The new legislative proposal converts unlawful cellphone use — for instance holding the cellphone in one’s hand even if far from the ear or mouth — to a reckless driving charge if committed along with another traffic infraction or traffic crime, even if only speeding one mile an hour above the speed limit. Reckless driving is a class 1 misdemeanor jailable up to one year, carrying up to a $2500 fine, and risking up to six months of suspended driving with the option to apply for restricted driving privileges.
Following are the key provisions of the draft cellphone legislation — omitting some of the exceptions, which can be read in the full draft:
“It is unlawful for any person to operate a moving motor vehicle on the highways in the Commonwealth while using any handheld personal communications device
to: unless the handheld personal communications device is specifically designed and configured to allow voice and hands-free operation and the device is being used in that manner;”
Excepted from this draft statute is: “The use of a handheld personal communications device for purposes of navigation or generating audio transmission, provided that such device is physically mounted to a vehicle;”
“If such offense occurs concurrently with an additional traffic offense set forth in Title 18.2 or 46.2, or a valid local ordinance governing traffic, or proximately results in an accident, it shall be punishable as reckless driving as set forth in § 46.2-868.”
This draft legislation may be mainly focused at reading, creating and sending text messages — which anyone is a fool at best to do while driving — but its language is so overly broad and unclear as to risk being found in violation of the law even for manually typing even one speed dial number onto the phone whether or not it is mounted to one’s dashboard or other part of the vehicle. The “mounted to a vehicle” exception could be constru
ed only to applying to running GPS software and such one-way listening as radio and saved music, and not applying to two-way conversations.
When legislators expand the laws that permit traffic stops and traffic charges, that provides an additional pretext for police to stop vehicles for other reasons — whether or not the real reason considers such factors as race, age and gender — including to troll for DWI violations and possession of drugs and other contraband. We see such pretextual stops all the time for such minor infractions as driving without a seatbelt, not signalling a turn, or having a taillight out.
Police driving down the road are going to mistake whether they see a cellphone in a driver’s hand when it might instead be a black glove. a wallet, or a comb. If this new bill passes, police are going to interrogate drivers about what they were allegedly doing with their cellphones, which is going to make us all the more of a police state, and going to add to the Orwellian twilight zone between the span of a police stop and the actual point where Miranda rights must be read.
Virginia already over-criminalizes reckless driving, to include driving even over 80 miles an hour anywhere, even in a seventy mile an hour zone, or at least twenty miles an hour over the speed limit.
Let us define words by their ordinary meaning, and not stretch them to embrace the mere holding of a cellphone far from one’s ear and mouth. If a driver is truly driving recklessly, police have the option to charge them under such other reckless driving provisions as the general reckless driving provision under Virginia Code § 46.2-852.
Southwest Virginia Delegate Terry Kilgore wisely opposes this bill, saying: “’We ought to wait and see how [the already-existing cellphone law] works before we keep going on down the road of prohibiting everything in cars because I think that’s where we’re going'” WCYB’s website further reports that: “Kilgore said he thinks the bill is unlikely to pass since the current law only narrowly made it out of the Militia, Police and Public Safety Committee.”