Tulsa Attorney BlogCan I Fight a Tulsa Oklahoma Texting and Driving Ticket?

Oklahoma No-Texting Law Riddled with Ambiguity

Tulsa Oklahoma texting and driving ticket attorneyA 2015 Oklahoma law prohibited texting and driving in Oklahoma. The bill extended an existing Oklahoma texting and driving law that applied only to commercial drivers. Although it is now illegal for any driver to compose, send or read text messages while driving in Oklahoma, nuances in the law could make the ban difficult to enforce.

To decide whether you should fight an Oklahoma texting while driving ticket, you might want to weigh the costs and consequences. Commercial drivers cited for texting behind the wheel could face a misdemeanor charge with a potential $500 fine – plus court costs and possible loss of Oklahoma CDL. That had been the law since 2010. Fines for other motorists are limited to $100 plus court costs and, for now, the conviction will not count as points against a drivers license.

Dissimilar penalties are not the only difference. The definition of texting in Oklahoma law is different for commercial drivers as compared to all other motorists. Likewise, the definition of operating a vehicle is different.

To make matters more complicated, a vehicle might or might not be a commercial vehicle depending on who is behind the wheel. A farmer who stops at a traffic light while hauling grain might legally glance at a Web site on his cell phone to check the weather. For a contracted hauler in an identical truck, the same quick check for incoming storms might result in a misdemeanor ticket. Okla. Stat. tit. 47 § 1-107.4.

The farmer – while stopped at a traffic light – might legally send a text message to drivers following in identical grain trucks. A farmhand employed by the farmer, stopped at the same signal, could legally read the text message. A contract hauler operating in the same convoy might face a misdemeanor ticket, points against a commercial driving record and possible loss of their commercial drivers license for reading the same text message at the same traffic light.

Along with broader definitions of “texting” and “operating” a vehicle, the more severe consequences for commercial drivers could make it more worthwhile for a professional driver to contest a ticket for texting and driving in Oklahoma. Any other motorist might decide to just pay the fine, which would likely be less than the cost of legal representation.

One reason a motorist might challenge a simple texting and driving charge could be if police used suspicion of texting and driving as a pretext for a traffic stop that led to felony charges. Such a scenario gets to the heart of why Oklahoma’s texting and driving law could be difficult to enforce.

When police in Indiana tried to build a federal heroin trafficking case around a texting and driving traffic stop, the Seventh Circuit Court of Appeals deemed it an illegal search. The court reversed the man’s conviction. Among other things, the case exposed legal differences between easily contested no-texting laws and more onerous but enforceable cell phone bans.

Not So Reasonable Suspicion

The Seventh Circuit’s problem with the officer’s traffic stop was that the officer did not explain why he thought the driver was texting. Valid traffic stops require reasonable suspicions. U.S. v. Gregorio Paniagua-Garcia No. 15-2540 (7th Cir. 2015)

The federal appeals court said, “The government appears to recognize no limit to the ground on which police may stop a driver… What it calls reasonable suspicion, we call suspicion.”

An officer had stopped the driver after passing him in traffic. He noticed the driver had a cell phone in his right hand and he was bent toward the phone. The officer said he “appeared to be texting.”

Why did the officer think the driver was texting, and not looking for music, the court wondered. By the State’s argument, any suspicion that a driver might not have a drivers license would be reason for a traffic stop, regardless any reasonable basis for the suspicion. Any driver drinking from a cup could be suspected of illegally consuming alcohol.

“A suspicion so broad that [it] would permit the police to stop a reasonable portion of the lawfully driving public… is not reasonable,” the Seventh Circuit noted, citing a recent finding in U.S. v Flores, 798 F.3d 645, 649 (7th Cir. 2015).

The federal court called Indiana’s statute “largely inefficacious” and said it was “probably wrong to outlaw such fiddling only with texting.” The appeals court went so far as to advise Indiana lawmakers to look across state lines for an example of a more effective hands-free law that applies to all cell phone use while driving.

Oklahoma Texting and Driving Law

Oklahoma’s no-texting law at first blush seems to be somewhat more broad than the Indiana law that narrowly defines texting. For that reason, prosecutors might find it somewhat easier to argue reasonable suspicion provided probable cause for a traffic stop. A careful reading of the law suggests otherwise.

For non-commercial drivers in Oklahoma, a text message is “a text-based message, instant message, electronic message, photo, video or electronic mail.” Okla. Stat. tit. 47 § 901(d)

A no-texting violation, for a non-commercial driver means to “manually compose, send or read an electronic text message while the motor vehicle is in motion.”

For non-commercial drivers, texting at a traffic light or while stopped in traffic might be okay – unless they are so distracted they pose “an articulable danger to other persons on the roadway.” That could result in an inattentive driving citation. Okla. Stat. tit. 47 § 901(b).

Oklahoma’s non-commercial texting and driving law has four elements:

  1. Operating a motor vehicle while it is in motion
  2. while using a hand held electronic communication device
  3. to manually compose, send or read
  4. an electronic text message.

Those elements address many activities where modern portable devise usage is involved, but there are gaps. Lawmakers’ attempt to allow use of voice-assistance technology might exempt anyone who uses most smart phones, regardless how they are used.

It could be a toss up whether glancing at a phone to answer an incoming call might be “texting.” If the call is on speaker phone, it is probably not.

Taking video behind the wheel with a digital camera that does not include wifi features would seem to be okay. Taking cell phone video behind the wheel of a moving vehicle, maybe not.

Lawmakers’ misdirected attention to device form factor creates further ambiguity. GPS devices attached to the vehicle are exempt, but using a smartphone to browse the same GPS navigation data might not be.

The definition of “electronic communication device” does not include “a device that is physically or electronically integrated into a motor vehicle.” That could mean it is legal in Oklahoma to browse Pandora stations – or read text messages — on an iPad mini installed in the dashboard, but not on a handheld iPhone. Does integration into the vehicle with a USB cable make a smart phone an exempt device?

A “hands-free devices that allows the user to write, send or read a text message without the use of either hand except to activate, deactivate or initiate a feature or function” is not an electronic communication device under Oklahoma’s no-texting law definitions. That broad exemption includes almost every modern smart phone.

Oklahoma’s no-texting law seems specific regarding hands-free texting. Audible voice assistants — like Apple’s Siri, Windows’ Cortana, Google’s Now, Skyvi, Iris, Robin, Vlingo or Maluuba – are free to carry on lively conversations with drivers who do not otherwise pose articulable dangers on the roadway.

The devices that support those voice assistants might not even be “electronic communication devices” as far as Oklahoma law is concerned. Do they become an electronic communication device only when the voice-control features are not used? Is Siri also an iPhone’s Get Out of Jail Free card?

The ambiguity might matter when there are questions of reasonable suspicion and probable cause. Is it reasonable for a police officer to suspect any driver glancing at a phone of illegally texting when the driver could as well be turning on a speaker phone? If most drivers’ voice assisted smart phones are not “electronic communication devices” under Oklahoma law, what reasonable suspicion would an officer have to stop any driver for texting and driving?

Commercial Texting and Driving in Oklahoma

Oklahoma’s texting and driving ban for commercial drivers is more broad and somewhat less ambiguous. There is no specific voice-assistant exemption, although GPS systems are exempt. So is voice dialing or using voice commands for answering a cell phone. Oklahoma law otherwise prohibits all hand-held cell phone use while operating a commercial vehicle. Okla. Stat. tit. 47 § 901(c).

Oklahoma lawmakers in 2015 extended the definition of operating a commercial vehicle to include idling in traffic – such as at a stop light – but commercial drivers may use text-message devices while parked.

Although the “text-based communication” definition for commercial drivers does not specifically prohibit sending photos or videos, it does include “a command or request to access a World Wide Web page. The commercial drivers’ law specifically defines texting as “manually entering alphanumeric text.”

While the commercial drivers’ definition of “electronic communication device” excludes only voice activated, vehicle mounted GPS devices, the statute’s definition of text-based communication does not include input, selection or reading of GPS or navigation systems.

Use of voice-operated cell phones is allowed while driving commercial vehicles, but manual calling on speaker phones is prohibited. For commercial drivers, using a cell phone for other lawful purposes is allowed, such as for fleet management, dispatching, “smart phones,” citizen band radio or music selection.

Those purposes “not otherwise prohibited” would seem to create the same difficulty the Seventh Circuit exposed when it decided an Indiana police officer’s suspicions were not reasonable. Looking at a cell phone is not a reason to suspect texting.

The Indiana driver told the officer he was selecting music on his hand-held device. If truckers in Oklahoma may legally select music on a smart phone, what reason would a Highway Patrol officer have to believe the driver is illegally texting rather than picking music?

How to Fight Texting and Driving Charges

Lawmakers nationwide have enacted texting and driving laws in response to very real dangers. Oklahoma’s law was passed after a distracted driver killed two highway patrol officers. The driver was texting.

However real the danger of distracted driving, greater dangers arise from setting aside constitutional protections against unreasonable searches. Oklahoma’s House of Representatives approved language in the 2015 law that would prohibit police from conducting traffic stops solely on the basis of suspected texting. The Senate rejected the language, and it was excluded from the final version.

If you fight a texting and driving ticket in Oklahoma, prosecutors must nonetheless show that probable cause for a traffic stop was based on reasonable suspicions. The Seventh Circuit case suggested merely holding a cell phone might not be a reasonable basis to suspect illegal texting and driving.

If you did not tell police you were illegally texting, it can be a matter of your word against theirs, but not necessarily. It would seem unlikely in a $100 traffic ticket case, but prosecutors could dig up your phone records. Although lawmakers did not adopt proposed language in the 2015 bill that allowed cell phone records to be used in evidence, those records could nonetheless be subpoenaed and used against you.

If you were ticketed for texting or calling emergency responders, firefighters, a hospital, a doctor, a health clinic, an ambulance or a law enforcement agency, you cannot be convicted of texting and driving in Oklahoma.

Police cannot legally grab your phone and scroll through your search history without a warrant. In 2014, the United States Supreme Court ruled warrantless searches of cell phones is unconstitutional. Riley v. California, 573 U.S. ____(2014) You do not have to agree to a search, although you may not legally resist an otherwise unlawful search.

Free Consultation: Tulsa Traffic Ticket Lawyer

If you are charged with texting while driving and need to context the charge, contact a Tulsa traffic ticket attorney at Wirth Law Office for a free consultation. Call (918) 871-1681 or – when you are not driving – text us your question using the form at the top of this page.

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