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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