Virginia Criminal Defense Attorney | Virginia's Texting and Driving Laws Are All Bark and No Bite

Portner & Shure Law Firm Serving Maryland, Virginia & Washington D.C.

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Yesterday, we discussed Virginia's cell phone, texting and driving laws. Remember, texting and driving in Virginia is now a primary offense, which means police officers do not need another reason to stop drivers they see texting.

Virginia's texting and driving laws differ from Maryland and the District of Columbia in that you can use your hand held device for other reasons besides texting and e-mailing. Va. Code § 46.2-1078.1(A)(1) states it is illegal to type characters into your device as a means of communicating with another person. This would cover text messages and e-mails. Va. Code § 46.2-1078.1(A)(2) provides that drivers are prohibited from reading any e-mail or text message sent to their device. However, the second part of that same provision provides an exception to this rule. While you can't read any e-mail or text message, you can use your phone to look up names and numbers on your device or use your phone's GPS.

Virginia's texting and driving laws fail to discuss the driver's use of other apps on their device. As a result, it is illegal for you to use your device to read or send a text message or e-mail in Virginia but you technically can use your device to play Angry Birds or get to the next level of Candy Crush. The issue here is that these laws provide drivers who are willing to lie an opportunity to get out of a citation. Drivers pulled over for texting and driving can state they were using their device to look up directions which is what they may have been doing. Law enforcement officers are finding it difficult to catch and cite drivers, which seems to defeat the very purpose of the law and increased fines.

Remember, drivers are not required to surrender their cell phones. Law enforcement officers will ask drivers pulled over for texting to see their phones in order to check the timestamps on their text. Drivers retain the right to refuse that request, and can then fight the ticket in court.