Texting and DrivingDepartment of Public Safety (DPS) is considering a campaign to cite people for distracted driving.   Since there is no Arizona law against texting and driving, the latest talk is that DPS will use the same statute that they use when someone rear ends another vehicle.  Sometimes it’s called Failure to control speed to avoid an accident.  Other times it’s called Speed not Reasonable and Prudent.  Essentially, it’s a speeding ticket.

It’s fairly creative thinking on the part of DPS. The theory goes that if you are distracted, you shouldn’t be driving and your speed should be zero, therefore, the citation will be for A.R.S. 28-701(A) “Reasonable and prudent speed”.

A person shall not drive a vehicle on a highway at a speed greater than is reasonable and prudent under the circumstances, conditions and actual and potential hazards then existing.    A person shall control the speed of a vehicle as necessary to avoid colliding with any object, person, vehicle or other conveyance on, entering or adjacent to the highway in compliance with legal requirements and the duty of all persons to exercise reasonable care for the protection of others.

Certainly, creative police theories will be met with creative defense theories.   When all is said and done though, this is certainly less heavy handed of State police than would be an arrest for reckless driving- a criminal offense with a potential of up to 4 months jail, a $750.00 fine plus 83% surcharge and 8 points on your driver’s license. This could potentially expose a person to a suspended driver’s license.

If a driver causes an accident while texting, they expose themselves to a reckless driving misdemeanor charge.  Or even aggravated assault or manslaughter charges- which are dangerous felonies requiring lengthy stays in the Arizona Department of Corrections.

The best legal advice is that if you have to use your phone, pull over.  Most all of us can exercise better discipline with our cell phones than we currently do.

Police - Writing TicketIf you are ever stopped by police or contacted by police in any situation, recognize that you have the right to remain silent.  You don’t have the right to lie but you can keep your mouth shut, ask for an attorney or politely decline to answer any questions.   I think it’s always fair to say, “Officer, I would love to speak with you but I would like to consult with an attorney first.”  That will usually end questioning from officers who are playing by the rules.

One quick anecdote:  A friend of mine formerly worked for DPS told me how he would pull drivers over he knew were speeding but sometimes his radar device didn’t pick it up correctly.  He would walk up next to the car, throw his hat on the ground and yell “Do you have any idea how fast you were going?”  The person would nervously state what they thought their speed was.  That was the speed my police officer friend would write on their ticket.  The moral is, don’t incriminate yourself.  I’ve rarely seen it help a person in 15 years of practicing criminal law on both sides of the isle.  It’s an important enough right that it was included in the bill of rights.   Police represent the state or our government.  Don’t confuse them because they may also be nice people.  They’re not your Priest or Rabbi.   Save your confessions for church.

If you have further questions about criminal or traffic problems, please call our office at 480-733-6800 and ask to speak with Mark Andersen or Russ Richelsoph. Mark and Russ bring over 30 years of combined experience as traffic and criminal attorneys. Their experience combined with their compassion, patience, intelligence, listening ability and commitment provides the extra value and attention everyone deserves.