Recently my office has seen a rash of criminal cases originating when the operator of a motor vehicle is stopped for suspicion of texting while driving. The newly enacted law, G.L. c. 90 Section 13B states that anyone caught sending or reading an electronic message while driving will be fined. Fines range from one hundred dollars for a first offense to two hundred fifty dollars for a second offense and to five hundred dollars for a third and all subsequent offenses. Unlike an OUI case, operation for this statute does not include texting while a vehicle is stationary. The police are jumping on this law as justification for stopping people they suspect are up to something other than simply texting. The stops are resulting OUI complaints and various Massachusetts drug crimes charges. Luckily, the law against texting and driving in Massachusetts is one that is difficult to prove and a large majority of these stops will be suppressed.
Challenging Motor Vehicle Stops Based on Texting and Driving Violations
Every day while driving to work or in your home town you see someone looking down at his or her phone. Obviously they are distracted by something pertaining to the device. But what exactly are they doing? The truth is you never really know. Accessing telephone calls, address books or sending cell calls from smartphones require movements similar to texting. None of this activity is unlawful. Naturally the police officer will report that he observed the suspect texting. Of course, when cross-examined an honest cop will not be able to distinguish between texting and making a call. A dishonest cop is going to lose credibility when he says “I am positive that the defense was texting”. That choice of words simply lacks a ring of truth. A judge hearing this evidence during a motion to suppress is going to have difficulty making the determination that the defendant was texting. A challenge to stops made on this bases might prove successful.
What Should You Do When Pulled Over For Texting and Driving?
As any criminal defense lawyer will advise a client, never talk to the police. Be polite, produce your license and registration as required but do not talk. You are under no obligation to say what you were doing. Moreover, do not hand your cell phone over to the police. They have absolutely no right to look through it and you are not obligated to produce it. Do not provide your personal code. Make them get a search warrant to do so. It is highly unlikely that they will take the time to apply for a warrant and equally unlikely that such a request will be granted. Instead, make the prosecution prove that you were in fact texting. If they can’t, your motion to suppress might be allowed and the case against you might be dismissed. Be smart. Say nothing.
Hire An Experienced Massachusetts Crime Attorney
Attorney Stephen Neyman has nearly thirty years defending criminal cases in Massachusetts. We have appeared in all courts in this state and countless federal and state courts in other jurisdictions. If you want to discuss a criminal case call us at 617-263-6800 or send us an email. We will start working on your defense right away.