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You’re being watched; texting-while-driving complaints, defenses

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.”

Laws

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.

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Email: sheinecke@stgnews.com

Twitter: @STGnews

Copyright St. George News, SaintGeorgeUtah.com LLC, 2014, all rights reserved.

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  22 Comments
  1. jim January 21, 2014 at 1:11 pm · Reply

    I’ve watched several officers with eyes glued to their monitor while driving, is that illegal?

    • M derrick January 21, 2014 at 2:33 pm · Reply

      We’ve actually saw officers texting (presumably) while driving also. They need to set an example. Also texting while stopped at a red light is not considered texting and driving. Hence the word driving

  2. Justin January 21, 2014 at 2:19 pm · Reply

    In my wife’s case it’s guilty until proven innocent. Somehow the St. George police officer cited her with a second violation and the judge said she has to prove that she didn’t have a first offense. It’s the courts job to have proper documentation and the officers job to properly cite someone for the correct violation. I feel that texting and even talking and driving should be banned completely but you either have a complete ban or you don’t because then their becomes confusion and the law is very vague as Jason stated. Eye witness statements are very hard to prosecute because it’s simply here say. Someone could say that someone threatened their life and then testify against you in court and they could be untruthful in their accusations. In this case if someone says I saw a green Jeep Cherokee driving and I “think” they were texting and calls the police and they pull over a green Jeep Cherokee, how would they know it’s the same Jeep and how do they know the eye witness was confused or giving the police officer false information? We live in a world now where a persons integrity doesn’t mean much to some people. Also if it’s someone who “thought” they saw someone that’s completely invalid as any substantial evidence.

    I’d like to share a story of something that happened last year involving integrity and the St. George police department. A friend of mine ended a relationship with a significant other and was in the process of moving his belongings out of the house when he got sick and so it took longer to move out. The woman in this situation called the St. George police and they came and it was obvious she was being untruthful. She said she was scared and he abused her. The officer asked why haven’t you reported this before. She stumbled,… I don’t know in a calm collective voice proving a made up story. The police officer stated he has the right to be here until he moves his belongings out. So a few days pass and he’s feeling better and moves some of his belongings out and comes back and the doors are locked and he is served with a restraining order based on a false accusation of abuse. Now he cannot enter the premises and he has about $10,000 worth of belongings in the house. So he goes to court and her attorney John Barlow sends messages by email stating if he gives her $3,000 that she borrowed from his friend they will return his belongings. For those of you who don’t know, this is extortion and it is illegal. He filed a petition with the court and the city of St. George conveniently “misplaced” his appeal which allowed his ex significant other under discretion of her attorney to sell off his items. When it was finally brought to court it was thrown out because it was in the “wrong forum” and should be in small claims court. By this time it was about three months from when this situation started and he knew because of the false accusations and how it was handled by the court system he would never see his belongings again and so he let it go.

    The point of this story in relation to my wife’s “second” texting and driving citation is that the St. George justice court and police department seem to have an integrity issue or there is a level of incompetence that gets to be refined because it is violating a persons basic rights and wasting people’s time, energy and burdening their finances.

    My wife went down and found out that she doesn’t have a first offense and now she had to retain an attorney to go to court to not only prove that she handed her phone to her daughter based on two completely identical matching statements, but now she has to prove she didn’t have a first offense because the officer and court were too incompetent to have their facts and information correct before entering a courtroom. This costs people time and money and in my opinion simply generates more income for the city of St. George.

    I don’t have a problem with the law, law enforcement or the justice system, it’s better than most justice systems, however a serious problem arises when a law isn’t clear and it’s implemented when officers and citizens aren’t fully aware of the law. The police are doing their job to the best of their ability and I am thankful for them and honor their service.

    Eye witness statements hold little merit because it’s basically one persons perception which could be skewed from the actual truth. In my honest opinion there must be substantial evidence to prove a witness statement because only two people know the truth, the courts do not know without substantial evidence.

    My advice to the St. George police department is to get clear on what the law entails and post it on a public forum or send a flyer in the mail or publish it in the newspaper so people know what to expect. California has banned all texting and driving and if you are talking then you have to have a Bluetooth wireless device. This law works because then drivers can’t say I was talking or checking a GPS location. They are clear on the expectations of them and their right to be licensed to operate a motor vehicle. As it stands now it says you can check GPS but not maneuver your thumb? How else do you punch in an address? The new texting laws are very vague and some clarity deserves to be made to the St. George citizens. I also challenge you to work on a system where eyewitness statements must have evidence. This doesn’t work in driving because the driver recording someone else texting is distracted that driver as well. You can kind of get where the loopholes fall. I also challenge you to get better organized, you can’t just “misplace” files and charge people with second offenses without performing a statewide background check before the case enters a courtroom. That’s very irresponsible, I would expect more from the professional position you hold in the community. I believe that’s misrepresentation on the courts part and the case should be dismissed but you are the ones in power and don’t like to take any accountability because it may look bad to the public.

    Ed. Note: St. George News has not undertaken to investigate and cannot authenticate the general scenario given in this comment concerning the domestic situation and legal process of the commenter’s innamed friend.

    • Oh WAAAAAAAA! January 21, 2014 at 7:46 pm · Reply

      You poor abused miserable soul you! Let me see if I can find a “crying towel” for you.

    • bub January 21, 2014 at 10:26 pm · Reply

      Could this become a book?

  3. Mikki January 21, 2014 at 2:26 pm · Reply

    It’s easy to delete a text message and have no proof of it on your phone.

  4. Kelly January 21, 2014 at 2:36 pm · Reply

    I’ve also seen them talking on the phone while driving

  5. lori January 21, 2014 at 5:53 pm · Reply

    Texting and driving does need to be handled. Im grateful that the police are doing their best to keep us safe. It is unsettling to anyone to get a ticket after the fact. It does feel like being stalked and not being seen by officer on duty and being pointed out immediately is hard to believe it actually happened. Much like telling someone days later that they had their hand in the cookie jar why not make sure they are caught in the act to accuse them of being guilty? . Seems maybe they are trying to make an example out of a few to send a message to the public.

  6. Mike January 21, 2014 at 6:03 pm · Reply

    Wow, sounds like a lot of sore people who can’t handle getting caught. Spinks!! Really smart to now publicly admit that you picked up the phone and looked at it. Duh! Just doing that alone constitutes a violation. If your daughter really was there then why didn’t she pick up the phone to begin with. I have been cut off countless times by idiots that use their phones while driving. I have had to spend my personal time waiting for police and writing reports for these types of drivers. I’m glad for the new law and hope it catches on. Its not fun having to stand up for whats right and turn others in. However, it may save a life and that makes it worth while. Justin… your wife and kids may be alive because of people that are willing to do the right thing.

  7. bub January 21, 2014 at 6:36 pm · Reply

    A lot of people can barely drive as it is. Then you put a smartphone in their hands and it’s a catastrophe waiting to happen. Anyone else notice how smartphones have actually made people dumber overall and more oblivious.

  8. Patti January 21, 2014 at 6:48 pm · Reply

    Hence why Spragg is back on bike patrol. Resulting in nothing but petty and not evidence worthy of distracted driving tickets. Why don’t you fools do something about the heroin/meth epidemic in this town? Make a difference or something already. While I am against texting while driving I hope the SGPD sets out to do more for this community rather than follow someone who is PRESUMED to be driving distracted.

    • Joelle Mickelson January 22, 2014 at 3:07 pm · Reply

      Check the bookings Patti. And next time you’re in trouble and need help, try calling a meth head. I wouldn’t want these officers who aren’t “making a difference” wasting their time on you.

  9. lori January 21, 2014 at 8:55 pm · Reply

    Picking up a phone os not against the law. I did not use my thumb or any means to open the text. Just noticed it was in fact a text. Other notifications have the same sound. The law states that the phone must be manipulated by the thumb. I don’t really care what others think of me being guilty or not. I know the truth. :)

  10. Justin January 21, 2014 at 9:04 pm · Reply

    Hey Mike you can get distracted grabbing a cheeseburger out of a McDonalds bag just as much as grabbing your phone idiot! Bottom line is it’s here say with no evidence. I could say you came into my yard and threatened my life and bring you to court, it’s here say!

  11. lori January 21, 2014 at 9:07 pm · Reply

    Besides what kind of an example would it be to children to lie. I am honest and if picking up a phone or any item whike driving is illegal than I would take accountability to show children that it is tge responsible way to handle a situation. :)

  12. Justin January 21, 2014 at 9:12 pm · Reply

    Mike I’m not disagreeing with the texting laws I believe they should be completely banned but the fact that anyone can say anything then being it to court and then find out it was written for a second offense that doesn’t exist is wrong! You can agree with that!

  13. Kanabcowgirl January 21, 2014 at 9:24 pm · Reply

    Boy with all this hubbub I’m getting really concerned about looking at the clock on my dash and being falsely accused of texting while driving. I too have seen cops manipulating their computers while driving or using their phones.
    To the guy about putting in an address while using GPS. It would be a good idea to pull over while entering the addy. When dh & I go somewhere I’m the 1 doing GPS while he drives and I can tell u that it takes concentration to get the addy in the Gps correctly. Then he has me read the directions to him.

  14. lori January 21, 2014 at 9:25 pm · Reply

    Bycicle cop or not he is an officer and I will say that he was doing his job. Im not angry or have hard feelings for that. I am grateful to all officers for their efforts to do what they feel os best to represent the citezens rights. I teach my children that police are good and that there is no need to ever fear them but

  15. lori January 21, 2014 at 9:26 pm · Reply

    to respect them and be honest upstanding citizens

  16. Lori January 21, 2014 at 10:13 pm · Reply

    To Kanab cowgirl that is the concern. Some things with the phone are legal while others are not. It is tough to know from hearsay tht someone was for sure breaking the law. To pull them over and talk with them or give a warning is one thing but even a person accussed of domestic violence must admit it to police in order to be arrested so why is texting and driving any different?

  17. ok January 22, 2014 at 2:58 am · Reply

    What is confusing is when thay use resonabale suspicion? Instead of probable cause. Lets wake-up if no roots in the ground a tree falls!

  18. Erik Wood January 22, 2014 at 11:20 am · Reply

    Text and Drive recently became the #1 killer of teens in the US – more lethal than drunk driving. I think its starting to become clear that legislation has value in raising public awareness in forums like this one but it will be difficult to solely legislate our way out of this issue. I also read that over 3/4 of teens text daily – many text more than 4000 times a month. New college students no longer have email addresses! They use texting and Facebook – even with their professors. Tweens (ages 9 -12) send texts to each other from their bikes. Technology needs to be part of the solution and not dismissed as the villain.

    I decided to do something about distracted driving after my three year old daughter was nearly run down right in front of me by a texting driver. Instead of a shackle that locks down phones and alienates the user, I built a texting asset called OTTER that is a simple and intuitive GPS based, texting auto reply app for smartphones. While driving, OTTER silences those distracting call ringtones and chimes unless a bluetooth is enabled. The texting auto reply allows anyone to schedule a ‘texting blackout period’ in any situation like a meeting or a lecture without feeling disconnected. This software is a social messaging tool for the end user that also empowers this same individual to be a sustainably safer driver.

    Erik Wood, owner
    OTTER apps (Since 2010. Free)

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