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Saturday October 2, 2010

Release Date: 10.02.10 | Location: All Metro Atlanta | Organization: Law Office of Esther Panitch

Expert Spotlight: Text or Pretext?

New Georgia Law Creates Confusion

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NewsCertified Expert Esther Panitch joins the Daybook Expert Network and provides some legal advice on what to do if you ever get stopped for texting and driving.

Article by Esther Panitch
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It’s rush hour in Atlanta and you are traveling to your baby’s first checkup. You grab your cell phone to call the doctor and to let them know you are running late. A police officer sees you looking down at your phone and pulls you over. He accuses you of Texting While Driving (TWD) and writes you a citation. As you try to explain, he notices your bloodshot eyes and sees white powder on the car seat. He orders you out of your car and searches it without a warrant. In vain, you try to explain that you haven't had but 3 hours of sleep at any one time and the white powder is baby powder.

Can this happen to you? Absolutely.

As of July 1, 2010. TWD in Georgia is illegal. (S.B. 360). By all accounts from law enforcement officers, enforcement is difficult, evidenced by the fact that only two dozen citations were issued statewide between August 1 and August 20, 2010. Making and receiving phone calls and using your navigation device are completely legal, as long as you are over 18.

An officer can only be certain of TWD by seizing your phone and reviewing texts.

Should you give up your phone without a warrant? I wouldn't. And that is not even the real threat to your Fourth Amendment rights.

Several recent court decisions have upheld warrantless searches of vehicles based on an officer’s suspicion of probable cause under the “automobile exception” to warrant requirements under the Fourth Amendment. Your attorney can argue that no “reasonably discreet and prudent person” would have suspected you of another crime, but the officer made his call based on your bloodshot eyes” and the baby powder on the seat.

TWD is illegal, but even appearing to text may give the officer a pretext to search your car without a warrant. While it may be a mere, albeit nausea-inducing inconvenience for some, adding to the long list of “suspicious” driving, the TWD law gives law enforcement yet another opportunity to nudge the 4th Amendment further down a slippery slope toward the diminishment of our most cherished rights.