ST. GEORGE – The campaign to stop distracted driving has received mixed reviews on the St. George Police Department Facebook page. Many of the comments are in favor of more stringent enforcement but many also question the law itself and the methods being used to enforce it. The examples of two people who have recently been charged with and pleaded not guilty to distracted driving – one by an off-duty policeman and another by a citizen complaint – along with considerable commentary on the subject, suggest that the campaign is raising awareness but also spawning activism.
Refraining from hands-on use of mobile devices while driving is the best defensive measure against these charges; but the laws have grey areas and drivers will do well to know their rights. One thing is for certain, you are being watched and not only by the cops.
Off-duty officer’s complaint
Washington City resident Erika Larsen, 22, was given a citation by St. George Police Officer Jud Callaway who came to her home at 10:30 p.m. a few days after he saw what appeared to be text messaging while she was driving on Oct. 14, 2013. Callaway was off-duty when he saw the perceived offense on Red Hills Parkway in St. George where both Larsen and he, while off duty, were driving. Larsen said she became aware of a car following her and it “heightened her senses.”
“I observed the phone was in her right hand and was held up about shoulder height,” Callaway said in his report. “I could see her right hand thumb as it was moving all over the screen. The phone never went to her ear, which made me believe she was not sending or receiving a phone call,” he said, and related a similar recurrence.
As the road turned to the right, Callaway said, Larsen’s car went over the solid yellow line next to the center median by driving on top of the line, if not all the way over the line, with its lefthand tires.
“The driver jerked suddenly to the right to avoid hitting the curb of the median,” Callaway said in his report.
When Larsen parked in front of her parents’ home, her destination, she said the car that had been following her pulled over for a few moments by her car, and then drove away. The driver had not identified himself in any manner and so, she said, it caused her concern for her safety.
Callaway had taken note of Larsen’s license plate, what she looked like, the address she arrived at, and later located her through records and by contacting her mother. When he showed up at Larsen’s doorstep to issue the citation, Larsen said she questioned him about who said she had been texting. He eventually told her it had been he who brought the complaint.
Larsen offered him her phone to search for the supposed text messages and he found none. He said she could have been using Facebook, she said. His report states that she said she may have been using her music app. The report and St. George News interview with Larsen reflect extensive dialogue between the two on their respective recollections of the night in question, the possibilities of what she may or may not have been doing at the time and her phone use habits.
Larsen has pleaded not guilty to the citation at arraignment and will face trial.
Although Callaway is not permitted to comment on an open case, St. George Police Sgt. Sam Despain said, generally speaking, an off-duty police officer can issue a citation for distracted driving.
Cited on the basis of a citizen complaint
A New Harmony woman, Lori Winder Spinks, was cited by St. George Police Officer Curtis Spragg on Nov. 27, 2013, based solely on a report by a private citizen, Lene Morford, who called the police upon reportedly witnessing Spinks texting and swerving while driving on Dixie Drive in St. George.
According to the police report, Spragg and Officer J. Wittwer were on Mountain Bike Patrol when they were dispatched to locate the car and driver reported by Morford. The officers found Spinks’ vehicle at Lin’s Fresh Market and waited for about 45 minutes, she said, before she came out of the store. The officers told Spinks of the complaint outside of her car after her three children were sent to her car.
“I was driving to Lin’s on Dixie Drive with my 14-year-old daughter in the front passenger seat when I heard my phone beep,” Spinks said to St. George News. “I picked up the phone and when I saw it was a message I immediately handed the phone to my daughter.” She told the officers essentially the same thing.
Spragg then interviewed Spinks’ daughter and wrote in his report: “(The daughter) told me that she had been the one to reply to the text message and that her mother had not.”
Spinks has been arraigned on a class-B misdemeanor text/email which pertains to a second offense. Spinks pleaded not guilty and challenged the claim of a prior offense, which she will need to prove up as her case proceeds. A review of Utah public records statewide appears to confirm no previous offenses and no traffic violations.
“When you have an event that was not witnessed by the officer, that may be a little more difficult case to prosecute,” Jason Velez, an attorney in St. George, said. “It is going to require the other person to come and explain what they saw;” he said, “and we know there are issues with eyewitness people.”
Although Spragg is not permitted to comment on an open case, Despain said: “Any citizen can report a distracted driver if they are able to identify the driver and the vehicle by license number and they are willing to testify in court. They can sign the citation instead of the police officer,” he said, “every citizen has a right to do that.”
You can be cited for distracted driving if you use your wireless device to text or manipulate the computer aspect of your phone while driving, according to the Utah Traffic Code. However, it is not illegal to make or receive a call on your phone or use it as a GPS device.
In enforcing this law, the police have the view that manipulating your phone with your fingers is a violation regardless of the reason, Despain said. If you are manipulating the device with your fingers – even while using your phone’s GPS while driving – then you can be cited, he said.
“There are definitely some vague areas of this law,” Velez said. ”What we do know is a text message is definitely out of the question,” he said. “This is a new body of law that needs to be developed.”
You can also be cited for careless driving if you commit two or more moving violations, other than speeding, while driving distracted. There is an exception made in this law if you are using a hands-free device, such as a Bluetooth.
Defenses and evidence
Evidence used by the police that you are driving while distracted may include photographs, interviews with the driver and witnesses, any observations that were made by the officer or other witnesses, Despain said.
“Our officers would have to have reasonable suspicion that you were texting and driving before they would stop you,” Despain said, “and during the investigation they could ask to see your phone, but if the citizen does not want to do so our officers would not demand them to; there are rules and laws we have to abide by and it would not be appropriate to demand that they see your phone.”
Defense attorney Velez agreed that probable cause is needed before the police can take your phone, but the question remains: what constitutes probable cause? It could just be the officer saying he thought the driver was texting, Velez said.
“I think it is very untested, you have every right to say no,” Velez said, “it is such a new law that these types of issues have not been decided.”
The police may use a variety of evidence to prove that you were distracted. The driver accused may in turn bring copies of mobile phone bills to court to help show that he or she was not texting or using data on the phone at the time of the alleged violation, Velez said; the prosecutor could subpoena those records to be used as evidence as well.
To defend yourself if you are cited for distracted driving, Velez said that you ask for a pretrial conference at the arraignment. You can then usually “bend the ear of the prosecutor,” he said, and possibly make a deal. If you do not like the deal that is offered, then you can go forward with the process to trial.
“I think the technology has advanced faster than the user has,” Velez said. “I would avoid the appearance of texting until they make an absolute prohibition to using a cell phone,” he said.
“I think that driving while texting is one of the most dangerous things people do,” Clay Huntsman, an attorney with 35 years prosecution and defense experience in Utah, said. “A person who is texting and driving is assuming a certain risk and I don’t think they should be whining about it if they get nailed for it,” he said, and of the available technology: ”It is just one more thing that makes life more difficult for innocent people to get from point A to point B without ending up in a wheelchair.”
Persons arrested or cited are presumed innocent until found guilty in a court of law or as otherwise decided by a trier-of-fact.
- Perspectives: Distracted driving, the nanny state at the local level
- St. George to fight distracted driving after local tragedy; STGnews Videocast
- City launches massive campaign against distracted driving
- Community Action Team public meeting on distracted driving, child safety
- Distracted driver runs light, causes accident
- Distracted driver triggers three-car accident, two sent to hospital
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