Ask Avvo: How can I fight a ticket for texting and driving?

Traffic law, Crime

Q: I was stopped in bumper-to-bumper traffic and looking down at my phone, but not texting. A police officer pulled me over and gave me a ticket for texting and driving. Is it possible to fight the ticket since I wasn’t actually texting?

A: Driving while using a cell phone or other device to talk or text can put you and other drivers at risk. The state driving laws about the use of these devices continue to evolve and vary state by state; but, as of now, 44 states plus Washington D.C., Puerto Rico, Guam and the U.S. Virgin Islands ban sending text messaging while behind the wheel. Fourteen states ban drivers from using hand-held phones for any reason. These states are also “primary enforcement states,” meaning a police officer can conduct a traffic stop and ticket you for hand-held phone use without another traffic offense taking place.

However, not every use of an electronic device or cell phone is illegal in all situations. For example, California driving laws allow drivers to dial a phone number if they are using a hands-free device. California courts have also ruled that the use of GPS devices — both stand-alone devices and phone applications like Google Maps — do not violate the so called “hands free” laws.

In your specific situation, it would be up to the judge to decide whether he found your testimony credible. If so, looking at your phone would not technically be a violation of California law. However, I see judges convict defendants who use this exact defense all the time — the judge simply says that he finds the officer’s testimony more credible than the defendant’s.

What you should know about cell phones and driving

If you live in a primary enforcement state and a police officer sees you driving with any kind of electronic device in your hand or up to your ear, he is probably going to pull you over and cite you. It’s in your best interest to avoid any gray areas so you stay safe and don’t get pulled over in the first place.

If you are cited for a cell phone or electronics-related traffic offense, I advise you to hire an experienced traffic lawyer. Vehicle offenses can go on your record and cause insurance rate increases and other consequences, such as having your driver’s license suspended.

Because the laws vary, depending on the state, you should always be familiar with your own state’s driving laws and contact a local traffic ticket lawyer if you do get a ticket.

Photo: Bloomua /