Texting While Driving in Virginia: What Virginia Drivers Need to Know
On July 1, 2013, amendments to Virginia Code § 46.2-1078.1 (increasing fines and changing other regulations regarding “texting while driving”) became effective.
The penalties for texting while driving have been increased to $125 for the first offense and $250 for second or subsequent offenses. Additionally, if you are convicted of both reckless driving and a violation of § 46.2-1078.1, there is a mandatory minimum $250 fine. Obviously, no one wants to pay fines any more than they want to deal with the other consequences of traffic violations (like increased insurance costs, suspended driver’s licenses, etc.). So the question is: what exactly does it mean to “text” while you “drive” in Virginia?
Under the new law, it is a violation of 46.2-1078.1 if a person manually enters multiple letters into a handheld personal communications devise as a means of communicating with another person. It is also a violation to read text messages or emails transmitted to or stored on a handheld personal communications devise.
Because a violation of Section 46.2-1978.1 is now a so-called “primary offense,” you can be stopped by a police officer if he or she has any reasonable, articulable suspicion that you texted or are texting while driving (called a “Terry Stop”). By way of example, using your Google Maps app on your smart phone to obtain directions is not an offense. However, using Google Maps and using your texting app look very similar to the officer watching you from the side of the road, and may constitute articulable suspicion. (Welcome to the growing police state authorizing more and more government intrusion into your life!)
Another complication is that we expect officers to begin to confiscate mobile devises as evidence. There is little to prevent this from happening. The following measures may offer you some protection: First, always ensure your phone requires a password to access information. Second, make the officer demand the phone from you. If he does, he has a right to it, but he may not know that. If he is only “requesting” the phone, don’t hand it over. Third, if your phone has a feature that will wipe all information after a certain number of incorrect log-in attempts or after a period of time, use it. DO NOT take any overt action to delete the information on the phone after you have been pulled over or after the officer has demanded you to hand over your phone as that would likely result in additional criminal charges.
If you are stopped on suspicion of texting while driving, remember your rights. You don’t have to consent to a search of your vehicle or person. If you are cited for texting while driving or any other traffic offense, call an attorney to protect your rights. You don’t have to plead guilty or pre-pay the fine. You may be able to avoid the long-term consequences of such a charge. While the texting while driving rule is broad and ambiguous, our firm has already done its homework and has found exceptions and defenses which may apply to you.
For legal representation at a fair price:
In Richmond, Powhatan, Chesterfield, Goochland, Petersburg,
Hopewell, Colonial Heights, Henrico, & Hanover and surrounding areas
contact Hull Street Law at 804-230-4200
The materials are prepared for information purposes only. The materials are not legal advice. You should not act upon the information without seeking the advice of an attorney. Nothing herein creates an attorney-client relationship.
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Richmond, Virginia 23224