Michigan’s new texting law is about to go into effect so of course it’s been the topic of conversation among defense attorneys.
According to attorney Stuart G. Friedman:
There are more holes in this law than in the IRS tax code. We face two separate issues with this law: (a) can we win our own tickets; and, (b) can we stop bogus traffic stops and driving while Black cases.
I think the answer to (a) is “yes.” The problem with “b” is the tendency of judges to treat law enforcement’s erroneous interpretation of the law as probable cause.
Furthermore, Mr. Steward says that the Chief of Farmington Hills “is saying that if you are looking down at the phone you are violating the law.” In other words, looking down towards the device was grounds in his opinion.
Attorney Mark Clement raises this question:
With the text ban almost here, the inevitable is going to happen where the cop grabs the drivers cell phone and starts going through it to determine if the driver was texting…..Any thoughts about the legality of that, alone?
What about when they stumble upon other evidence on the phone leading to other crimes?
Attorney Mike Nichols answers:
Mark: you posit a scenario in which an officer takes someone’s phone to search for evidence of a violation of the civil infraction of texting while driving. It strikes me as the sort of search for an extremely minor offense that, without a warrant or exigent circumstances, offends the constitution using an analysis similar to that of Judge Lawson’s in Platte and Spencer (Platte v Thomas; Spencer v Bay City).
Mr. Friedman brings another issue, which is the probable existence of privileged information on a lawyer’s phone. He characterizes it this way:
The problem for attorneys who carry smart phones is that it would be an ethical violation for us to let a cop look at our phone and we will have that fight. The cops will cloud the issue by alleging weaving, belligerence, etc.
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baronedefensefirm – who has written 204 posts on .
Patrick T. Barone is the author on two books on DUI defense including the well respected two volume treatise Defending Drinking Drivers (James Publishing), and The DUI Book – A Citizen’s Guide to Understanding DUI Litigation in America. He is also the author of a monthly DUI defense column for the Criminal Defense Newsletter, published by Michigan’s State Appellate Defender’s Office. Mr. Barone is an adjunct professor at the Thomas M. Cooley Law School where he teaches Drunk Driving Law and Practice. He is also on the faculty of the Criminal Defense Attorney’s of Michigan’s Trial Lawyer’s College where he provides trial skills training to Michigan’s criminal defense practitioners. Mr. Barone lectures nationally on various DUI defense topics, and he has appeared in newspapers, on television and on radio as a drunk driving defense expert. Mr. Barone has been certified as an instructor and practitioner of the Standardized Field Sobriety Tests and has also attended a 24-hour certification course at National Patent Analytical Corporation (the manufacturer of the DataMaster) and has thereby been deemed competent by the manufacturer to operate, perform essential diagnostic verifications and calibration checks on the DataMaster. Mr. Barone is a Sustaining Member of College for DUI Defense. Mr. Barone is the principal and founding member of The Barone Defense Firm, whose practice is limited exclusively to defending drinking drivers. The Firm is headquartered in Birmingham, Michigan.
