In 2011, the Indiana Legislature passed a law that made texting or emailing while driving a Class C infraction, punishable by a fine of up to $500. The law, found here, was an attempt to curb dangerous driving behavior that has led to an increase in car accidents nationwide. Though texting or emailing while driving is never a good idea, this law is not without problems that render it nearly unenforceable.

Most of Indiana’s laws related to traffic infractions are found at Indiana Code 9-21-8. Located within section 59 is the law regarding texting/emailing and driving. The law states that:

Sec. 59. (a) A person may not use a telecommunications device to:

(1) type a text message or an electronic mail message;

(2) transmit a text message or an electronic mail message; or

(3) read a text message or an electronic mail message;

while operating a moving motor vehicle unless the device is used in conjunction with hands free or voice operated technology, or unless the device is used to call 911 to report a bona fide emergency.

(b) A police officer may not confiscate a telecommunications device for the purpose of determining compliance with this section or confiscate a telecommunications device and retain it as evidence pending trial for a violation of this section. As added by P.L.185-2011, SEC.4.

A “text message” is defined in IC 9-21-8-0.5 as “a communication in the form of electronic text sent from a telecommunications device.”

The potential problems with this law are numerous and obvious. The law only forbids: (1) typing, transmitting, or reading a text message, or (2) typing, transmitting, or reading an electronic message (or e-mail). The law does not, however, address the hundreds of other smartphone capabilities we use on a daily basis, including: checking Facebook and Twitter, looking up sports scores, using a GPS function, accessing music, or even watching streaming videos. According to the statute, all of these things and more are legal to do while driving.

Beyond the activities the statute does not address, its very own language makes the law nearly unenforceable because a police officer cannot confiscate your device to prove an infraction. Additionally, under Indiana case law, a police officer would need a search warrant to go through your phone even if it could be confiscated. Furthermore, texting and emailing while driving is legal if done through the use of a hands-free device. All of these factors together add up to a nearly unenforceable law that has seen fewer than 400 drivers cited since becoming law.

At trial, the State can only rely on the police officer’s testimony as to what you appeared to be doing with your phone, what you said you were doing with your phone when asked, or what was on your phone’s screen when you consented to the police officer looking at it. That said, it is important to know that you are not required to say anything to a police officer in this situation or provide the officer access to your phone. Without your statements or an officer’s access to your phone, the State can only guess at trial as to what you were doing with your phone. This alone should never be enough to find guilt.

While the Indiana legislature may eventually revisit this law to fix its many problems, it is essential that you know both the law’s consequences and your responsibilities under it. Obviously, the best way to avoid an infraction is to put your phone down while driving. However, it is important that you hire an attorney familiar with this law should you be cited under it.

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