Fight the Power

If you live in Minnesota, you may or may not have heard about a new law which went into effect August 1, 2008. Minnesota Statutes Sec. 169.475 provides that it is now a petty misdemeanor to engage in electronic messaging while driving. What is an electronic message? The statute defines it as "a self-contained piece of digital communication that is designed or intended to be transmitted between physical devices." It goes on to include text messaging, email, and attempts to access the web via your cell phone.

The ostensible purpose of the law is innocuous enough: to cut down on the number of accidents caused by distracted, text-messaging drivers. The public safety concerns gloss over what could end up being far more sinister consequences of this new police power.

If a police officer sees you with a cell phone in hand while you are driving, that can be construed as reasonable suspicion to make a traffic stop. Now here is our first potential problem: what if you are simply getting a number from your phone book or turning your phone on or adjusting the ringer volume when the officer sees you? How is the officer going to confirm that you were in the act of texting? Is he going to take your phone? That's a seizure under the 4th Amendment of the United States Constitution, and it requires probable cause.

Now we arrive at the second potential problem: if the officer can show probable cause that you were texting, can the officer use it to perform a search of you? Of your vehicle? Of the passengers in your vehicle? Whether or not they can is a matter for the courts to decide, but I assure you that the police WILL use this newest encroachment on our civil liberties to make unwarranted traffic stops in the hopes of discovering an arrestable offense. It's their job to uphold the law, and if you are in a community of calm, quiet, law-abiding citizens, you are going to suffer because in such places police officers are very nearly always bereft of purpose and are searching for lawbreakers at every stoplight.

Finally, how does this play out in a contested case in front of a judge? How is the prosecutor going to meet their burden of proof? Do they have the authority to subpoena the contents of all your text messages in order to ascertain whether you were engaged in the illicit activity? Is it simply a matter of your word against that of the officer? There are a litany of evidentiary concerns as well as potential privacy issues that make my stomach turn.

Well, I would like to know the answers to the questions posed above, because this trend toward totalitarian traffic laws (yeah I said it) in the name of public safety is really giving me a rash. If you have received a citation for texting while driving, please shoot me an email or comment here and let me know the circumstances. Everyone else, just be aware of what you are doing with your phone when you are driving.

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