The way our constitution is supposed to work is very simple. We, the people, elect people to represent us. They make laws. When the local or state government makes them active, the law enforcement agencies leap into action. As from day 1, they are out on the streets looking for offenders. The opening blitz of tickets or arrests sends a message to the community. That no one is safe. Break this law and you will be issued a ticket. Fines will be payable. Change your behavior.
Well, that’s the theory. The reality is somewhat different. Five months ago, the town councils in Mount Pleasant and Charlestown banned texting while driving. This is rapidly becoming the leading cause of deaths while driving. The laws are appropriate. Except, in the following five months, not one ticket has been written by the police. Let’s make one thing clear. The people who live in these towns did not suddenly stop texting. The explanation is the police have not been looking for offenders.
To understand the problem, we should cross over to Georgia which passed a statewide ban in 2010. Two years later, the statistics showed that less than fifty people a month had been ticketed.
What’s the problem? Well it all comes down to the difficulty in collecting evidence of the offense. To justify a traffic stop, the officer must actually see the driver using the mobile device. That establishes reasonable suspicion. Obviously, the majority of drivers have the smartphone on their laps which makes it difficult for the police officer to see from his or her patrol car. So now we come to the trial in the traffic court. There’s this little presumption of innocence to overcome. The police officer says he or she saw the phone. The driver denies using it. Who’s right? Well, the only way to prove the case is for the prosecution to produce the phone records to show whether it was being used at the relevant time. Unfortunately, without a warrant, the police have no power to solicit the phone records. They do not even have the power to confiscate the phone to make a physical search of the phone’s own records. The result? The prosecution fails to prove the case beyond doubt and the case is dismissed unless subpoenas are available.
Of course that does not explain or justify the refusal of law enforcement officers to look for offenders. When they are out on patrol, they could be alert. If they travel in pairs, one could be equipped with a camera to take photographs which might tip the evidential scales. But for the officers in Mount Pleasant and Charlestown to go five months with seeing a single offender must be creating a record for turning a blind eye. What makes this all the more remarkable is there was an accident in Mount Pleasant in which the driver admitted the cause was texting. Even in that case, there was no charge. Three states have refused to ban texting. Who are these three hold-out states? Why, Arizona, Montana and South Carolina. As the headline says, southern states don’t care to interfere with a driver’s freedom to crash and burn.