Know Your Rights / Can I be arrested for texting while driving?

By Barry E Krischer

While it may be hard to believe based on current behaviors the Florida Legislature in 2014 created the “Florida Ban on Texting While Driving Law.”  See, 316.305, F.S. This law created a secondary traffic infraction for any person who manually enters letters, numbers, or other symbols into a wireless communication device while operating a motor vehicle. As a secondary offense a motorist could not be cited for violating this law unless the motorist was being stopped or detained for a different violation.  However, this year the Florida Legislature has updated the law and as of July 1, 2019, any violation of the Florida Texting law will be considered a primary offense. What that means is an officer will be allowed to detain a motorist and issue a traffic citation solely for “texting while driving.”

Section 316.306, F.S., prohibits using a wireless communications device in a handheld manner in a designated school crossing, school zone or active work zone area. This second part of the law goes into effect on October 1, 2019. After that date a motorist can be pulled over and issued a warning for using wireless communications devices in a handheld manner in school and work zones. Starting January 1, 2020, motorists will be issued a citation for not using a wireless communications device in a hands-free manner in school and work zones.

These statutes makes clear that a wireless communications device is any device capable of being used in a handheld manner, that is designed or intended to receive or transmit text or character-based messages, access or store data, or connect to the Internet or any communication service and that allows text communications. This includes a cell phone, tablet, laptop, two-way messaging device, including an electronic game that can be used in a handheld manner.

Penalties for texting and driving are set out in section 316.305. A first offense is considered a non-moving traffic violation with a base $30 fine, not including additional court costs or other fees, and no points assessed against the driver license. A second offense within five years is a moving traffic violation, with a base $60 fine, not including court costs and other fees, and 3 points assessed against the driver license. For using a hand-held device in a school zone and work zone, the penalty is a moving traffic violation, with a base $60 fine, not including court costs and other fees, and 3 points assessed against the driver license.

The statute does provide for some exceptions. The law does not apply to vehicles that are stationary. Thus, texting while at a red light or stop sign is exempt. However, if a driver remains stopped when the light turns green the driver could be cited for impeding the flow of traffic if they are required to be in motion and are distracted by their phone. Other exceptions apply to a driver who is:

  • Performing official duties, such as operating an emergency vehicle (i.e., law enforcement, fire service professionals, and emergency medical service providers).
  • Reporting an emergency, a crime or other suspicious activity to law enforcement.
  • Receiving messages that are:
  • related to the operation and/or navigation of the motor vehicle; b. safety-related information (emergency, traffic, and weather alerts); c. data used primarily by the motor vehicle; or d. radio broadcasts.
  • Using the device in a way that does not require manual entry of characters, except to initiate a function or feature.

And the important exception applies to a driver who is using the device in a hands-free manner for navigation purposes. The law does allow any driver to utilize their phone or other devices to track GPS directions.

A law enforcement officer who stops a motor vehicle for a violation of the texting ban must inform the driver of his or her right to decline a search of his or her wireless communications device and the officer may not: 1. Access the wireless communications device without a warrant; 2. Confiscate the wireless communications device while awaiting issuance of a warrant to access such device; and, 3. Obtain consent from the motor vehicle operator to search his or her wireless communications device through coercion or other improper method. The law is clear that consent to search a driver’s wireless communications device must be voluntary and unequivocal.

Interestingly, while the law is intended to eliminate distracted driving there is no law prohibiting eating, drinking, shaving, or putting on makeup while driving. Constantly checking on an infant in a car seat or a dog in the backseat is equally distracting and there is no law in Florida that would allow an officer to ticket a driver for doing those activities.

While the new law is effective July 1, troopers and officers will be issuing warning citations until Jan. 1, 2020, as a grace period. So, the answer to the opening question is “yes.”

Barry Krischer has been a criminal law practitioner for 48 years. He served as State Attorney in Palm Beach County from 1992 – 2008. He currently volunteers at the Palm Beach County Sheriff’s Office, Legal Affairs Unit, and regularly provides in-service training to law enforcement officers. He can be reached at [email protected].

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