Virginia Texting Law Lets People Go Free

texting and driving

Virginia passed it’s anti-texting law to try to be tougher on people who are driving distractedly and texting. As I’ve said before, this law is unnecessary. And after seeing it in practice for a few years, it’s actually letting people off the hook for traffic violations.

The problem is that a lot of officers write texting violations based on observations they make of the driving behavior rather than proof that the person was actually texting. A typical case, like I saw yesterday in King George, involves an officer who testifies that the defendant was driving erratically, swerving in and out of their lane. That prompted a traffic stop, and based on the interactions with the person, the deputy wrote a texting while driving ticket. In today’s case ,the judge made the correct ruling that the defendant was not guilty of texting based on the evidence presented because the defendant testified in court that he was using his phone for the radio and there was no actual evidence where the deputies saw the defendant text.

The law is doing its job here. People cannot be guilty for a violation of texting while driving just because the deputy thinks you must have been texting because you swerved out of your lane and you had a phone in your hand. That is not against the law in Virginia because you can use your phone for many legal purposes such as making a phone call, using it for GPS, using it for music and so on. In order to be guilty of texting while driving the Commonwealth has to be able to prove beyond a reasonable doubt that you were in fact entering numbers or letters into your phone to communicate with someone OR that you were reading a message that was stored in your phone in communication with someone.

What the officers are missing in these cases is that if you swerve out of your lane at any time while driving, you can be written a ticket for failure to maintain your lane. That’s a traffic violation. The same level of offense of texting while driving. They’re both traffic violations. If a deputy sees you swerve out of your lane for any reason, you would be guilty of a traffic violation for failure to maintain your lane.

It honestly baffles me why officers are taking it upon themselves to write texting violations when they can’t really prove texting while driving. In many of these cases that I’ve seen, they can easily prove and get a conviction for failure to maintain your lane or some other similar offense that they actually did witness.

I’m happy to report that the judges at least in the Fredericksburg area are doing their job and dismissing cases when there is reasonable doubt if the person was actually texting.

The key point to take away here is that if you’re charged with texting while driving, you might not be guilty, because the Commonwealth might not be able to prove that you actually were texting while driving.

The other key point is that we don’t need more laws. We simply need to enforce the laws that we have. If someone is leaving their lane because of texting or because they’re eating a hamburger, it’s still a traffic violation. We didn’t need to pass a texting while driving law in the first place.

Photo by: Distracted Driving

Andrew Flusche

My name is Andrew Flusche. I am a traffic and misdemeanor defense lawyer in Virginia. I limit my practice to traffic tickets and misdemeanor defense, so I know the ins and outs of these offenses. I literally wrote the book on reckless driving in Virginia which you can get on Amazon here or download for free here. I opened my practice in 2008 after earning my Juris Doctor degree from the University of Virginia School of Law. Since then, I have earned over 600 5-star reviews from happy clients on Google, Yelp, and Facebook. If you’ve been charged with a misdemeanor offense in Virginia, please don’t hesitate to contact me. Your initial consultation is always free, and you'll talk directly with me about the details of your case.

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