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Friday, February 19, 2016

Ind. Decisions - 7th Circuit posts one Indiana case today (re texting while driving), decided yesterday, a reversal

In USA v. Gregorio Paniagua-Garcia (SD Ind., Magnus-Stinson), a 6-page opinion, Judge Posner writes [ILB emphasis]:

An Indiana statute forbids drivers to use a telecommunications device (normally a cellphone) to type, transmit, or read a text message or an electronic-mail message, Ind. Code § 9-21-8-59(a)—in short it prohibits “texting” (sending or receiving textual material on a cellphone or other handheld electronic device; also called “text messaging” or “wireless messaging”) or emailing while operating a motor vehicle. All other uses of cellphones by drivers are allowed, Joel M. Schumm, “Recent Developments in Indiana Criminal Law and Procedure,” 45 Indiana L. Rev. 1067 (2012): making and receiving phone calls, inputting addresses, reading driving directions and maps with GPS applications, reading news and weather programs, retrieving and playing music or audio books, surfing the Internet, playing video games—even watching movies or television. Most of these activities seem dangerous—though no more so, and maybe less so, than texting—and because a driver is more likely to engage in one or more of them than in texting * * * the most plausible inference from seeing a driver fiddling with his cellphone is that he is not texting.

An Indiana police officer, in the course of passing a car driven by Gregorio Paniagua-Garcia (whom for the sake of brevity we’ll call just Paniagua) on an interstate highway, saw that the driver was holding a cellphone in his right hand, that his head was bent toward the phone, and that he “appeared to be texting.” Paniagua denies that he was texting, the officer has never explained what created the appearance of texting as distinct from any one of the multiple other—lawful—uses of a cellphone by a driver, and the government now concedes that Paniagua was not texting—that as he told the officer he was just searching for music. An examination of his cellphone revealed that it hadn’t been used to send a text message at the time the officer saw him fussing with the cellphone.

Almost all the lawful uses we’ve listed would create the same appearance—cellphone held in hand, head of driver bending toward it because the text on a cellphone’s screen is very small and therefore difficult to read from a distance, a finger or fingers touching an app on the cellphone’s screen. * * *

Indiana is right to be worried about the dangers created by persons who fiddle with their cellphones while driving, but probably wrong to outlaw such fiddling only with respect to texting—if only because the effect of slicing up drivers’ use of cellphones in this way has been to make the Indiana statute largely inefficacious, such is the difficulty of distinguishing texting from other uses of cellphones by drivers by glancing into the driver’s side of a moving automobile. The contrast with Illinois, which has a “hands-free” law, 625 ILCS 5/12-610.2 (a driver is forbidden to use a cellphone with his hands, as distinct from using bluetooth or other technologies that enable the driver to communicate without manipulating his cellphone), is striking. For while in 2013 only 186 citations were issued for violations of the Indiana texting law, more than 6700 citations were issued in Illinois for violations of the Illinois hands-free law. (These figures are from Zach Myers, “Texting Tickets: Police Unable to Enforce Indiana’s Texting and Driving Law,” FOX 59, May 21, 2014, http://fox59.com/2014/05/21/3-years-later-police-say-indianas -texting-and-driving-law-remains-unenforceable/ (visited February 16, 2016).) REVERSED AND REMANDED

Posted by Marcia Oddi on February 19, 2016 11:45 AM
Posted to Ind. (7th Cir.) Decisions