Ohio court: It’s up to drivers, not prosecutors, to prove they weren’t illegally texting behind the wheel
Ohio court: It’s up to drivers, not prosecutors, to prove they weren’t illegally texting behind the wheel
Ohio's new ban on texting while driving has a list of exceptions; a court says it's up to motorists to prove those exceptions apply to them.
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This headline is a disaster. The court found that the exceptions--things you're allowed to do with your phone while driving--are affirmative defenses. That is, if the prosecutor already made a prima facie case that the defendant was breaking the device use law, then the burden shifts to the defendant to prove one of the exceptions applies.
It's a much better rule than one that would, implicitly or worse, give the cops carte blanche access to your phone.
If these exemptions are read only as affirmative defenses then could a police officer who reasonably suspected you owned or possessed a cell phone (because they saw you get into your car holding it, or using it while parked) could pull you over, cite you, and force you to prove it was in your pocket?
ORC § 4511.204 B (13) A person storing an electronic wireless communications device in a holster, harness, or article of clothing on the person's body.
Sounds like if they don't know what .doing they don't have probable cause to accuse me. If they see me smoking it's not on me to prove i wasn't smoking something illicit...burden of proof never switches to the defendant that's not how any of this works.
This will get overturned on appeal.
Nope. Affirmative defense burden of proof is on the accused. See, for example, ORC Section 2901.05.
Ohio's not my jurisdiction, but that's exactly how this works.
Source: Lawyer here.