No it is not illegal, unless you are using your phone unlawfully. Virginia has passed a new law that allows an officer to pull you over if they suspect that you are using your phone without any other suspicion of wrongdoing. If you are on your phone while operating your vehicle, you run the risk of being pulled over and investigated further.
The new law is codified in Virginia code section 46.2-1078.1 and states:
A. It is unlawful for any person to operate a moving motor vehicle on the highways in the Commonwealth while using any handheld personal communications device to:
1. Manually enter multiple letters or text in the device as a means of communicating with another person; or
2. Read any email or text message transmitted to the device or stored within the device, provided that this prohibition shall not apply to any name or number stored within the device nor to any caller identification information.
B. It is unlawful for any person while driving a moving motor vehicle in a highway work zone to hold in his hand a handheld personal communications device.
C. The provisions of this section shall not apply to:
1. The operator of any emergency vehicle while he is engaged in the performance of his official duties;
2. An operator who is lawfully parked or stopped;
3. The use of factory-installed or aftermarket global positioning systems (GPS) or wireless communications devices used to transmit or receive data as part of a digital dispatch system; or
4. Any person using a handheld personal communications device to report an emergency.
D. A violation of subsection A is a traffic infraction punishable, for a first offense, by a fine of $125 and, for a second or subsequent offense, by a fine of $250. A violation of subsection B is punishable by a mandatory fine of $250.
New Law Alert and What it Means for DUI and Drug Laws
Importantly, the police will likely use this as a tool to investigate you. There are other laws, such as this, that the police use as a tool to investigate further like the obstructed view (an object that hangs from the rear-view mirror), loud exhaust, tinted windows and others. Police tend to use these reasons to pull you over at night. Why would they do that? They want to catch drunk drivers.
It has been clear over the years of my practice of law that most drivers who are charged with drunk driving in violation of 18.2-266 are not pulled over for terrible driving behavior. The perception that a person must be driving all over the road and clearly a danger to be charged with driving while intoxicated is not accurate.
Very few individuals are actually driving in such a distinctly drunk manner. Most frequently, in my experience, people are pulled over for minor traffic infractions and this new hands-free law will be added to the list of frequently used offenses to justify stopping your vehicle. Stops at night and in certain locations begin with intoxication in the mind of the officer because:
- The police know where the bars and restaurants that serve alcohol are located.
- They know what time the bars call “last-call” and when the doors close. They patrol the roads in those areas typically between the hours of 10PM – 2:30AM.
- They are trained to believe that people drive drunk often and that most car accidents are the result of drunk driving.
- They are also trained that it is their job to prevent these accidents and any injuries or fatalities that might result from those accidents.
The police would like to stop each vehicle leaving a bar or restaurant to fulfill the job of ensuring no drivers are intoxicated. However, they cannot pull over a vehicle just because it is leaving a bar or restaurant. They need a reason. They must have reasonable articulable suspicion to not violate our 4th Amendment right against unreasonable searches and seizures. Therefore, they are looking for any reason to investigate.
During these hours, minor traffic infractions that might be overlooked in daylight are used frequently, including but not limited to, a “California stop” which is an incomplete stop at a stop sign or right turn on red, speeding 5 miles or more above the speed limit, touching or crossing the line even if not egregious, and now using your cell phone while driving.
Using Traffic Infractions to Arrest for Drug Possession
Besides investigating drunk driving, the police will also utilize traffic infraction laws to investigate for drug possession, drug use, and drug distribution. Very often, the police suspect drug trafficking activity at a house or a location like a gas station and will watch the activity through various surveillance operations.
However, a brief encounter between two people, without more, is not generally enough to satisfy the 4th Amendment requirements to search and seize a person. The police will look for another lawful reason to initiate contact with an individual in an effort to investigate further. Law enforcement will then follow a person’s vehicle who they have a hunch about until there is a valid reason to stop the vehicle. This new hands-free law can be used for such purposes.
Consent to Search
Additionally, in the drug context, this law might be used to have a person voluntarily hand over their cell phones for inspection. Many people try to defend themselves on the side of the road with the officer. This is not advisable. Nevertheless, if an officer is claiming that person was improperly and unlawfully using the cell phone while driving, many people will hand over the phone to show the officer that it didn’t occur.
By doing this, you have given an officer the permission to look through the phone. This is legally giving an officer consent to search. When you might have thought they would look only at the call log, they might take the opportunity to look at your texts or other apps to investigate any evidence of other wrongdoing. Illegal activity found during a consensual search can and will be used against the individual.
It is very important to be aware of traffic laws. These laws do save lives. They are valid and important to avoid unnecessary distracted driving. However, they are also used to open the door to police investigation of more serious offenses.
Contact the criminal defense attorneys at Naum Estevez if you have been pulled over under the suspicion of using your cell phone and were charged with a DUI or Drug offense.