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    TEXTING WHILE DRIVING

    I just had to shake my head when I saw on the news that Governor Granholm signed the new texting while driving law on The Oprah Winfrey show.  Although I don’t disagree that texting while driving probably isn’t the safest idea, my fear is that the police will use this as an excuse to pull you over to investigate you for other things.  So in order to combat this inevitable procedure, you need to know your rights.

    WHAT EXACTLY DOES THE NEW MICHIGAN TEXTING WHILE DRIVING LAW PROHIBIT?

    According to MCL 257.602b, “a person shall not read, manually type, or send a text message on a wireless 2-way communication device that is located in the person's hand or in the person's lap, including a wireless telephone used in cellular telephone service or personal communication service, while operating a motor vehicle that is moving on a highway or street in this state.”  If you get pulled over for this, the penalty is a $100.00 fine for the first time and a $200.00 dollar fine for the second violation.

    SO WHAT DOES THIS MEAN?

    The scariest part of the new texting while driving law is how easy it will be for cops to pull you over without any real reason.  My first question is how will the police see you texting or reading your phone?  Because of this law, a cop can now pull you over and just say that they thought you were looking at your phone.  What about when you are trying to make a phone call with your phone?  I have an Iphone and in order to make a call, you have to interact with the display on the device.   Am I violating the texting while driving law when I make a call with my Iphone?  This law will end up causing much litigation as the texting while driving statute is clearly ambiguous and does not properly describe what the limits of conduct are that constitute texting.

    WHAT SHOULD YOU DO WHEN YOU ARE PULLED OVER?

    I am willing to wager that the first thing the cop that pulls you over for texting while driving will ask you for your phone.  DO NOT GIVE IT TO HIM!!!!!!   You have constitutional rights protecting you from illegal searches and seizures.  Without a search warrant, the police do not have any right to demand to see your phone.  Further, because this type of violation is a civil infraction, they have little to no ability to obtain a search warrant to see your phone.  So keep your phone in your pocket and tell them that if they want to see your phone, they better produce a search warrant. 

    HOW DOES THIS RELATE TO DRUNK DRIVING CASES

    Having handled many operating while intoxicated cases in Oakland County, I can assure the public that texting while driving will likely supersede swerving and not wearing a seatbelt as the main reason why people are pulled over when a cop really wants to pull you over to investigate something else.  So be careful, and if you have been pulled over for driving while texting, you need to fight this. 

    FIGHTING THE TEXTING WHILE DRIVING ILLEGAL STOP

    There are many legal issues which need to be worked out in the Michigan Court system before we know exactly where people stand on driving while texting being used as a method of stopping somebody for a OWI investigation.  There is a strong likelihood that the Appellate Courts will modify or limit the extent of this law, or in the alternative, require some type of proof in order to allow a stop of this nature to stand constitutional scrutiny.  Of course this means a motion in your case needs to be filed, so you need a lawyer who actually fights on a daily basis.