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.
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.
The police still have to see you messing with your phone while driving before charging you. It's just up to you to prove you were doing one of the allowed types of interaction, such as swiping to change songs, because the police are not allowed to search your phone.
The main problem with this is that there's literally zero way to prove this, one way or the other. There are no logs with that level of detail, nor is there a (usable) timestamp of the observed infraction.
The best you could do is show that you did not send a text message, or a Facebook post, etc. Not only does this fail any chain of custody concerns (since you can't get a certified copy from an independent party), it's also trying to (impossibly) prove a negative.
Even if you could, that's still not good enough. You have to show, conclusively, that you were doing something explicitly allowed.
Go ahead and try to show that you even skipped a song in your preferred music player, let alone when.
I think a camera with a view of your device and the windshield or dash would probably suffice in most cases.
But, you may be right. Someone else said they were affirmative defenses, like when you are charged with driving without a license the police don't have to prove there was no emergency, but if the defense proves the emergency you are acquitted. Unfortunately while this law is explicit about that example, it fails to say the texting exceptions are affirmative defenses, so I don't know.
It's not up to me to prove anything in court. Onus is always on the prosecutor. Judge got this one fundamentally wrong.
Ruling against a fundamental tenant of American constitutional rights? Sue their asses!
Did you read the article? That is not what this is at all.
Sure driving distracted and mowing down kids is a fundamental constitutional right…. You sure about that…?
Is it so damn hard to put the phone down for 20 minutes while driving? The fact that some US states legally let you use your phone at a stop light/sign is absolutely mind boggling.
Guilty until proven innocent.