How will a proposed bill change state law if you get caught texting & driving?

Read answers to FAQs about House Bill 33

By Donovan Myrie - Special Projects Producer
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Texting and driving generic photo

TALLAHASSEE, Fla. - With the new bill introduced by the House Wednesday (HB 33) for a stricter texting and driving law, there’s a lot of confusion

as to what will and will not change for Florida drivers.

News 6 contacted the office of House Speaker Richard Corcoran, and they were able to provide us with some answers to a lot of questions and concerns.

Under the proposed bill, what exactly would be defined as texting and driving? 

•    As defined by the Speaker’s Office, the term “texting and driving” herein refers to any non-voice interpersonal communications (ex, Snapchat, WhatsApp, email, messenger services in apps like Facebook Messenger, etc.)

What does the bill do if it does not create new penalties or change the current penalty? 

•    The bill changes the current enforcement of the texting ban from secondary to primary. This means a law enforcement officer can pull a person over if the officer has reasonable suspicion to believe the driver is texting while driving. 

•    Currently, a law enforcement officer cannot pull over a driver for texting while driving unless that person is violating another traffic law. 

•    The bill creates safeguards for personal privacy by requiring a warrant to access a cellphone.

•    Officers must inform drivers of their rights to decline a search of the cell phone and must not:

o    Access the device without a warrant; 
o    Confiscate the device while awaiting the issuance of a warrant; 
o    Use intimidation tactics to convince the driver to provide access without a warrant.

•    The prohibition against texting does not apply if the vehicles is stationary – for example, stopped at a red light.

How will a law enforcement officer know I am texting while driving?

•    Law enforcement officers receive extensive training to recognize risky driver behavior. 

Won't this just be another way for police to racially profile?

•    Current law requires every sheriff and every municipal law enforcement agency to have an antiracial or other anti-discriminatory profiling policy (ss. 30.15(3) and 166.0493, F.S.). 

•    Anti-profiling policies must include traffic stop procedures, community education and awareness efforts, and policies for handling complaints from the public. 

•    The Florida Highway Patrol also has policies against bias-based profiling. 

How can a law enforcement officer prove I was texting while driving if they cannot access my phone without my consent or a warrant?

•    Most traffic laws, including seat belt violations, rely on law enforcement officers witnessing the infraction and writing a police report. 

•    If a law enforcement officer has reason to believe a motor vehicle operator is texting while driving, the officer likely will include all relevant information in his or her police report documenting such behavior and will testify to such in court. 

•    As with every traffic offense, the motor vehicle operator has the right to appear before a trier-of-fact and refute the officer’s claim in traffic court. 

Can I be pulled over for a separate infraction and then be given a ticket for texting while driving instead?

•    Yes.

Can officers pull me over for texting while driving as an excuse to search my vehicle?

•    Law enforcement officers have the authority to pull over a motor vehicle if they believe the vehicle operator is texting, emailing or instant messaging. 

•    If the vehicle is pulled over, law enforcement officers may only search the vehicle if they have probable cause to believe the motor vehicle operator or someone in the vehicle has committed or will commit a crime. 

•    In the absence of probable cause or consent, law enforcement officers have to get a search warrant to search a vehicle. 

Can I be pulled over for using my GPS or finding a song to play on my phone over Bluetooth in my car?

•    Neither GPS nor choosing a song is non-voice interpersonal communication.

•    The current law specifically prohibits a person from driving and manually typing or entering letters, numbers, symbols, etc., for the purpose of non-voice interpersonal communication. This specifically includes texting, emailing and instant messaging while driving. The bill maintains these prohibitions. 

•    In addition, the current law and the bill specifically exclude the use of a device or system for navigation purposes. A law enforcement officer may pull over a motor vehicle if the officer has reason to believe the driver is texting, emailing, or instant messaging.

•    As to the use of a cellphone to find a song to play, the law and the bill specifically prohibit driving and manually typing or reading data for the purpose of non-voice interpersonal communication. Since searching for a song does not appear to be an example of non-voice interpersonal communication, it would appear that such behavior is not prohibited.

Will law enforcement be allowed to search my phone?

•    The bill specifically prohibits law enforcement officers from accessing any wireless communications device without a warrant. 

•    Furthermore, the bill prohibits law enforcement officers from confiscating a wireless communications device while awaiting issuance of a warrant or using intimidation tactics to coerce an individual to provide access to a device without a warrant.

Will they be able to see private pictures, text messages, emails, etc.?

•    A law enforcement officer cannot see private pictures, text messages or emails unless the law enforcement officer gets a warrant that allows him or her to access the private pictures, text messages or emails. 

What happens if the officer searches my phone without a warrant or my consent?

•    The United States Supreme Court has held that searching a phone without a warrant is illegal and violates the Fourth Amendment of the U.S. Constitution. The bill prohibits a law enforcement officer from accessing the driver’s phone without a warrant. As such, any evidence obtained from the phone will likely be inadmissible in court.

What happens if the officer fails to notify me of my rights regarding the access that law enforcement has to my phone?

•    The bill does not address a law enforcement officer’s failure to notify the driver of his or her rights regarding access to the driver’s phone. However, it is likely this scenario will be treated similar to a law enforcement officer failing to read a suspect a Miranda warning. 

•    Any information obtained by law enforcement from a phone without informing the motor vehicle operator of his or her right to decline a search will likely be inadmissible as evidence in court.

When must they notify me of my rights? 

•    A law enforcement officer should notify the driver of his or her rights prior to searching or beginning a search of the motor vehicle operator’s phone.

What are the penalties for texting while driving? 

•    A first violation remains a non-moving violation that carries a $30 fine plus court costs, for a total fine of up to $108. 

•    A second or subsequent violation committed within five years is a moving violation that carries a $60 fine plus court costs, for a total fine of up to $158, with three points added to the driver license record of the motor vehicle operator. 

•    In addition to these penalties, any violation of the ban that causes a crash results in six points being added to the offender’s driver's license record. Any violation of the ban committed in conjunction with any moving violation for which points are assessed, when committed within a school safety zone, results in an additional two points being added to the offender’s driver's license record.

Is it still a civil citation or a criminal infraction now?

•    The penalty remains a noncriminal traffic infraction.

Do penalties increase if I am ticketed for texting while driving multiple times? Could I conceivably go to jail if I am ticketed enough?

•    Yes, penalties increase if a motor vehicle operator is ticketed for texting while driving multiple times. The fine increases from $30 for a first offense to $60 for a second or subsequent offense within a five-year period, plus court costs. 

•    An individual cannot go to jail because of the number of tickets received for texting while driving; however, the individual could go to jail if his or her license is suspended due to excessive points on his or her driver's license or for failure to pay the texting while driving citations. At that point, an individual can be arrested for knowingly driving with a suspended license. 

What threshold must be met to get a (search) warrant?

•    To obtain a search warrant, a law enforcement officer must go before a judge or magistrate judge and show probable cause that an infraction occurred and that items connected to the infraction are likely to be found in the place specified by the warrant, for example, the motor vehicle operator’s cell phone.

What happens if they get a warrant for my phone and find that I wasn’t texting while driving?

•    The citation will likely be dismissed.

Can my license be suspended because I was texting while driving?

•    A motor vehicle operator’s driver license may be suspended if he or she fails to pay the texting while driving citation or fails to appear at a scheduled hearing.

What studies exist that indicate texting while driving laws reduce deaths, injuries and accidents?

•    The National Highway Safety Administration (NHTSA) has reported that “text messaging creates a crash risk 23 times worse than driving while not distracted.” This is largely because “sending or receiving a text takes a driver’s eyes from the road for an average of 4.6 seconds, the equivalent – at 55 mph – of driving the length of an entire football field.” 

•    These and similar statistics are cited by proponents of prohibitions on texting while driving and other laws that curb distracted driving.

•    In 2014, NHTSA reported that 385 fatal crashes involved the use of cellphones as distractions (13 percent of all fatal distraction-affected crashes) and 404 people died in the crashes. 

o    For these distraction-affected crashes, the crash report stated the driver was talking on, listening to or manipulating a cellphone (or other cell phone activity) at the time of the crash. 
o    The NHTSA report also noted that the comparison of the proportion of drivers of each age involved in fatal crashes and those involved in distraction-affected fatal crashes points to overrepresentation of drivers under the age of 30.

•    The Department of Highway Safety and Motor Vehicles (DHSMV) utilizes crash report data to compile statewide statistics on distracted driving crashes. The categories for distracted driving (excluding Not Distracted and Unknown) on a crash report are electronic communication device; other electronic device such as a navigation device or DVD player; other inside the vehicle, external distraction (outside the vehicle); texting; and inattentive. 

o    In 2015, there were more than 45,700 distracted driving crashes in Florida, resulting in more than 39,000 injuries and more than 200 fatalities. 
o    Distracted driving crashes represented 12.2 percent of all crashes, 7.4 percent of all fatal crashes and 15.4 percent of all injury crashes. 
o    The 20 to 24-year-old age group made up the largest group of distracted drivers at 17.8 percent, followed by 25 to 29 year-olds at 14.3 percent and 15 to 19 year-olds at 11.6 percent. 

•    According to DHSMV, there were 1,430 texting citations issued in 2016 and 1,413 issued in 2015.

•    The Office of Program Policy Analysis & Government Accountability (OPPAGA) reviewed numerous distracted driving studies, including research that analyzed the effects of state legislation prohibiting handheld cellphone use while driving.

o    Research noted that texting bans must be accompanied by a robust public awareness campaign to be effective.
o    Studies also identified enforcement as a significant challenge, especially in instances where enforcement was limited to a ban on texting only. 
o    OPPAGA also reviewed available data on distracted driving crashes from four states (Iowa, Louisiana, New Jersey, Virginia) that moved from secondary to primary enforcement of a texting while driving ban. 
o    The data indicated changes in cellphone-related crashes over time varied across states. For example, the number of drivers involved in distracted driving crashes with fatalities and injuries declined in Virginia after the state moved to primary enforcement. In New Jersey, crashes related to cellphone usage declined initially after the primary enforcement ban in 2008, but began to increase again in 2012.

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