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Changes to the Ban on Texting while Driving Law

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By Megan A. Rosenberg

On July 1, 2019, Florida’s amendment to Fla. Stat. §316.305, went into effect.  This statute is known as the “Ban on Texting While Driving Law.”  By amending this statute, the Legislature’s primary intent was to improve roadway safety for everyone using Florida’s roads and reduce injuries, deaths, property damage, health care costs, health insurance rates, and car insurance rates related to motor vehicle crashes.  

The biggest change is that law enforcement officers are now permitted to stop motor vehicles and issue citations to people solely for texting while driving.  Keep in mind that “motor vehicles” are not just cars. The term motor vehicle also includes other modes of transportation such as motorcycles, trucks, trailers, semitrailers, recreational vehicles, and even golf carts.  Prior to the amendment, texting while driving was considered a “secondary offense,” meaning an officer could only issue a citation for texting while driving if the driver had committed another moving violation, such as speeding.  As amended, texting is now a “primary offense.”  

The statute does not solely relate to sending text messages on your cell phone.  It bans operating a motor vehicle while “manually typing or entering multiple letters, numbers, symbols, or other characters into a wireless communications device for the purpose of nonvoice interpersonal communication.”  Nonvoice interpersonal communications includes, but is not limited to, “texting, e-mailing, and instant messaging.”  A cell phone is not the only prohibited device. A wireless communications device is defined as “any handheld device used or 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 communications service as defined in s. 812.15 and that allows text communications.”  Examples of other wireless communications devices include iPods, iPads, hand-held games, and laptops.

As with any ban, there are certain exceptions.  The prohibition does not apply to emergency vehicle drivers, law enforcement, fire service professionals, or emergency medical services professionals.  You can use your device while your vehicle is stationary, i.e. not being operated. You may use your mobile device to report an emergency, a crime, or suspicious activity to law enforcement.  You can receive messages related to the operation or navigation of your vehicle and safety-related information such as emergency, traffic, or weather alerts. You may also use your mobile device for navigation.  You can conduct “wireless interpersonal communication,” e.g. talk on your phone or send text messages verbally, so long you are not reading text messages or manually entering multiple letters, numbers, or symbols into your device (except to activate, deactivate, or initiate a feature or function).  The law even anticipates a future where driverless vehicles become the norm and lists operating an “autonomous vehicle in autonomous mode” as an exception.

A first violation of the Ban on Texting while Driving Law is considered a noncriminal traffic infraction, punishable as a nonmoving violation.  This means you will only have to pay a fine and will not receive any points on your license. The amount of the fine is not established by the statute, but varies by the county in which the infraction occurs.  A second or subsequent violation within 5 years is still a noncriminal traffic infraction, but will punished as a moving violation, meaning you will receive points on your license in addition to a fine. This can impact your ability to obtain car insurance at an affordable rate, as you will be considered a higher risk.  

If you are pulled over for violating the Ban on Texting while Driving Law, you may wonder if you must give your device to the officer.  The answer is no, you are not required to give the officer your device or allow the officer to examine it.  In fact, the officer is required to inform you that you have the right to refuse.  An officer must obtain a warrant before accessing your device and may not confiscate your device while waiting for a warrant to be issued.  An officer is also prohibited from obtaining your consent through coercion or threats. Your consent must be voluntary and unambiguous. There are few good reasons to freely hand evidence over to someone whose primary motivation is to use it against you.  The law is very clear regarding the right to refuse. Mobile devices like cell phones contain vast amounts of personal data that can be easily be misused. Your right to privacy is explicitly laid out in Florida’s Constitution, and your device may only be obtained through the issuance of a warrant by a neutral and detached magistrate.  

You may also wish to know if law enforcement can use your phone records to determine if you were texting while driving.  Your phone records may only be obtained and used as evidence if you were involved in a crash resulting in death or personal injury.  

Interestingly, the law also requires a law enforcement officer who issues a citation for texting while driving to record the race and ethnicity of the violator.  Every law enforcement agency must maintain the information and report it to the state. Starting February 1, 2020, that information will be compiled and presented to the Governor and Legislature.  Presumably this information will help the government determine if the law is being applied uniformly or if the law is having a disparate impact on certain segments of the population.

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