COLUMBUS, Ohio — It’s up to Ohio drivers accused of violating the state’s new texting-while-driving law to prove at least one of the many exceptions to the law applies to their case, a state appeals court has ruled.
Ohio’s stricter anti-texting rules, which took effect last year, allow police to pull over drivers they see using their phones behind the wheel. But there’s a lengthy list of exemptions to the ban, including that motorists can still use their phones when engaged in a phone call, while parked or stopped at a traffic light, and for functions that have “single swipe” controls, like changing a song.
Last October, a state trooper pulled over James R. Havens after seeing him driving while using his fingers on his cell phone. The Licking County Court of Common Pleas found Havens guilty of violating the state’s texting-while-driving rules and ordered him to pay court costs.
Havens appealed, arguing (in part) that prosecutors failed to show that none of the exemptions in state law applied in his case.
But a three-judge panel with the Fifth District Court of Appeals, in a June 7 decision, unanimously sided against Havens’ argument.
In the ruling, Judge Andrew King held that the list of exceptions that state lawmakers put in the texting-while-driving ban are “affirmative defenses” that defendants can offer to avoid conviction, using information that only they would know.
King offered a couple of examples to demonstrate that Ohio lawmakers intended to put the burden of proof on drivers to show they had a legal excuse to use their phone behind the wheel.
One example, King wrote, is that the state’s driving-while-texting ban does not allow law-enforcement officers to search motorists’ phones without consent to see if they were using the phone for a permissible activity.
“That … suggests the legislature intended the driver to come forward with evidence in support of his or her legal excuse for using the device,” he stated.
King also noted that exemptions in other traffic offenses are treated as affirmative defenses, not possibilities that the state must refute to win conviction.
State Appeals Court Judges W. Scott Gwin and John Wise concurred with King’s opinion.
