A DWI arrest all starts with a traffic stop. But an officer does not have unlimited discretion as to who he may stop. The Fourth Amendment protects us against unreasonable searches and seizures and requires that an officer must have “reasonable suspicion” that the driver has committed a crime or infraction to make a traffic stop. Last week, a Georgia police officer stopped a driver he saw eating a cheeseburger and driving, reasoning that he had reasonable suspicion that the driver was violating Georgia’s statute which prohibits distracted driving.
To explain how this happened, let’s start with the Fourth Amendment, which states that
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
According to the US Supreme Court, a “traffic stop is a seizure even though the purpose of the stop is limited and the resulting detention quite brief.” Traffic stops are reviewed under the standard set out in the US Supreme Court case Terry v. Ohio, which requires an officer to have "reasonable, articulable suspicion that criminal activity is afoot" to make a traffic stop. Typically, any traffic infraction can provide reasonable suspicion for a traffic stop.
As awareness of the dangers of texting and driving increased, many states passed laws prohibiting texting and driving laws. North Carolina was one of these states, passing a law in 2009 which makes it unlawful to text and drive. G.S. 20-137.4A states that
(a) Offense. - It shall be unlawful for any person to operate a vehicle on a public street or highway or public vehicular area while using a mobile telephone to:
(1) Manually enter multiple letters or text in the device as a means of communicating with another person; or
(2) Read any electronic mail or text message transmitted to the device or stored within the device, provided that this prohibition shall not apply to any name or number stored in the device nor to any caller identification information.
(a1) Motor Carrier Offense. - It shall be unlawful for any person to operate a commercial motor vehicle subject to Part 390 or 392 of Title 49 of the Code of Federal Regulations on a public street or highway or public vehicular area while using a mobile telephone or other electronic device in violation of those Parts. Nothing in this subsection shall be construed to prohibit the use of hands-free technology.
(b) Exceptions. - The provisions of this section shall not apply to:
(1) The operator of a vehicle that is lawfully parked or stopped.
(2) Any of the following while in the performance of their official duties: a law enforcement officer; a member of a fire department; or the operator of a public or private ambulance.
(3) The use of factory-installed or aftermarket global positioning systems (GPS) or wireless communications devices used to transmit or receive data as part of a digital dispatch system.
(4) The use of voice operated technology.
(c) Penalty. - A violation of this section while operating a school bus, as defined in G.S. 20-137.4(a)(4), shall be a Class 2 misdemeanor and shall be punishable by a fine of not less than one hundred dollars ($100.00). Any other violation of this section shall be an infraction and shall be punishable by a fine of one hundred dollars ($100.00) and the costs of court.
No drivers license points or insurance surcharge shall be assessed as a result of a violation of this section. Failure to comply with the provisions of this section shall not constitute negligence per se or contributory negligence per se by the operator in any action for the recovery of damages arising out of the operation, ownership, or maintenance of a vehicle.
Like North Carolina, the legislatures of most states have recognized the dangers of texting and driving and passed laws prohibiting texting and driving. However, the Georgia legislature went even further, prohibiting distracted driving. The broad language of Georgia’s statute states that “[a] driver shall exercise due care in operating a motor vehicle on the highways of this state and shall not engage in any actions which shall distract such driver from the safe operation of such vehicle.”
The Georgia police officer used this broad language to justify reasonable suspicion for stopping the driver he saw eating a cheeseburger and driving, telling the driver “you can’t just go down the road eating a hamburger.” The officer followed the man for two miles and observed him eating and driving during this time. The stop resulted in the officer issuing a ticket to the driver, which included the explanation “eating while driving” in the remarks section.
A local DUI attorney said that he has seen this type of charge when there is an accident, but never in the absence of an accident. The driver claims he was not driving erratically or speeding and plans to fight the ticket, possibly challenging the vagueness of the statute. Under the Constitution, a criminal law can be void for vagueness and violate the due process clause when a person does not have adequate notice as to what type of behavior is prohibited.
For now, North Carolina drivers can continue to enjoy their food and drive at the same time. But if you are planning on traveling to Georgia anytime soon, put down your food and focus on your driving.
If you have been charged with impaired driving, contact an attorney at Rosensteel Fleishman, PLLC (704) 714-1450, to discuss your options.