NY to introduce "TEXT STOP X MILES" signs along highways

[hbelkins]

This after New York recently raised the fine and points for texting while driving, and has promised to step up enforcement. Cuomo is really making an issue out of it.

What's unnerving is that precedent already states that in New York use of a camera while driving is considered legally equivalent to texting while driving. This potentially creates a greater risk of getting pulled over for roadgeeks.

Kentucky's governor is also trying to administratively allow points for texting after the legislature refused to enact such a law. I'm in hopes the legislature will find such a regulation deficient and thus reject it, although even that doesn't matter anymore since the legislature recently found an educational regulation deficient and the governor opted to implement it anyway.

I think every photograph I've taken in New York was done while I was driving and I've never had an issue with it.

I welcome said bans.

Why am I not surprised? Would you also welcome bans on talking on a CB, smoking, eating, conversing with passengers or changing the radio station?

[Duke87]

Unless the po-po want to go to all the trouble of subpoenaing cell phone records with detailed time stamps, a ticket for texting while driving comes down to a swearing contest.  Cop says you were, you say you were not.  Far easier to just point the radar gun at the next random tax victim.

Actually, a ticket for cell phone use is the same as any other moving violation: if you challenge it in court you are presumed guilty and have to prove that you are not. So, said swearing contest results in a fine and points.

So get a StickyPod to mount your camera on the dashboard and put it on burst mode while you're driving.

I don't know of any cameras that allow you to set them to an indefinite burst mode (mine certainly does not have that feature), so a dash mount still requires operation while driving. This method would also produce a lot of unnecessary photos, and in doing so drain your battery and fill up your SD card. Not exactly efficient. (nevermind the inability to aim the camera or optimally time photos this way)

It's helpful to have a dash mount for filming, though.

[hbelkins]

Actually, a ticket for cell phone use is the same as any other moving violation: if you challenge it in court you are presumed guilty and have to prove that you are not. So, said swearing contest results in a fine and points.

First time I've ever heard that. If true, I'd suspect that concept could very easily be challenged as a violation of the standard of presumption of innocence.

[Alps]

Strawmen work so well.

Trying to ban items or activities usually tends to be an exercise in futility unless you can get almost everyone on board with it.  I fear trying to ban cell phone use (and texting for that matter) is just as futile.  It would be better to simply use existing laws as others have stated in this thread.

We've seen how well the state-by-state bans are working.

[SidS1045]

If true, I'd suspect that concept could very easily be challenged as a violation of the standard of presumption of innocence.

That ship sailed decades ago.  Most moving violations in most states are now "civil infractions" or some similar legal construct, meaning that the presumption of innocence in criminal proceedings doesn't apply.

[empirestate]

I bet that if the penalty for texting and other mobile device violations resulted in the potential loss of your smartphone rather than the potential loss of your driver's license, it would be taken much more seriously.

[SP Cook]

Actually, a ticket for cell phone use is the same as any other moving violation: if you challenge it in court you are presumed guilty and have to prove that you are not. So, said swearing contest results in a fine and points.

Actually, at least in my state, we still have a thing called the Constitution Of The United States Of America, and such a concept does not exist. 

[dgolub]

If true, I'd suspect that concept could very easily be challenged as a violation of the standard of presumption of innocence.

That ship sailed decades ago.  Most moving violations in most states are now "civil infractions" or some similar legal construct, meaning that the presumption of innocence in criminal proceedings doesn't apply.

The weakest standard of proof in this country, as far as I know, is the preponderance of the evidence standard, where it has to be shown that there's more than a 50% chance that someone did what they're accused of.  That's what's used for compensatory damages in civil cases.  Clear and convincing evidence is used for punitive damages.  Proof beyond a reasonable doubt is used for criminal cases.  I'm not aware of anyone being presumed guilty of anything under American law.  Maybe certain judges or juries don't follow the law, but that's a whole other story.

[Compulov]

I bet that if the penalty for texting and other mobile device violations resulted in the potential loss of your smartphone rather than the potential loss of your driver's license, it would be taken much more seriously.

I laughed when I read this... my next thought was perhaps we should threaten to send drivers to the principal's office. I do think this would be an awesome idea for some activist judge (you know, the kind of judge people hate)... get a sentence of "banned from cell phone use for one year" or something.

[KEVIN_224]

The signs were already up near the northbound I-684 rest stop in Bedford. They were sitting just in front of the existing rest area signs. Mostly blue signs with white lettering.

[empirestate]

I bet that if the penalty for texting and other mobile device violations resulted in the potential loss of your smartphone rather than the potential loss of your driver's license, it would be taken much more seriously.

I laughed when I read this... my next thought was perhaps we should threaten to send drivers to the principal's office. I do think this would be an awesome idea for some activist judge (you know, the kind of judge people hate)... get a sentence of "banned from cell phone use for one year" or something.

Well, or another option would be to increase the number of cases where the loss of one's license is "actual" rather than merely "potential"...

[roadman]

IMO, one way to deal with the texting while driving issue is to make texting a standard of fault if a crash occurs (even if said crash doesn't involve another vehicle).  Coupled with that, allow the driver's insurance carrier to limit or deny any claims for said crash.  It may take some time, but I believe that, in the long run, this approach would be far more effective that the current "small fine - slap on the wrist" approach to the violation that most states currently employ.  For example, in Massachusetts, being stopped for having an invalid inspection sticker will almost always get your vehicle impounded, but being stopped for texting isn't even a moving violation.

[SidS1045]

Actually, at least in my state, we still have a thing called the Constitution Of The United States Of America, and such a concept does not exist.

If you consult your state's MV code, I'd almost bet cash US money it says otherwise.

Nowhere in the US Constitution is a presumption of innocence stated explicitly.  Via various Supreme Court decisions, it has been held to be implicit in the protections afforded by the Fifth, Sixth and Fourteenth Amendments.  However, in non-criminal and non-civil cases, which category most MV violations now fall into, there is no explicit or implied presumption of innocence.

[jeffandnicole]

IMO, one way to deal with the texting while driving issue is to make texting a standard of fault if a crash occurs (even if said crash doesn't involve another vehicle).  Coupled with that, allow the driver's insurance carrier to limit or deny any claims for said crash.  It may take some time, but I believe that, in the long run, this approach would be far more effective that the current "small fine - slap on the wrist" approach to the violation that most states currently employ.  For example, in Massachusetts, being stopped for having an invalid inspection sticker will almost always get your vehicle impounded, but being stopped for texting isn't even a moving violation.

The person texting would have to admit to texting.  Or, the insurance company would have to go thru the hassle of subpoenaing the records of the person who everyone thinks was doing the texting.  And in most minor crashes, it's probably not going to be worth the time or money to do that, especially if that person was already faulted for the crash.

[mc78andrew]

This after New York recently raised the fine and points for texting while driving, and has promised to step up enforcement. Cuomo is really making an issue out of it.

What's unnerving is that precedent already states that in New York use of a camera while driving is considered legally equivalent to texting while driving. This potentially creates a greater risk of getting pulled over for roadgeeks.

I saw a VMS sign this morning on the hutch just as I entered NY from CT. 150 dollar fine and 5 points.  I don't know much about points bc I have never had any but it sounds like a lot. 

People have to know this is dangerous, so I am not sure any law will change behavior.  I have had a few close calls when sending a quick email or trying to look up a phone number, yet I still try to get away with it once and a while.  Even when driving in NYC where it really easy to get caught it's tempting to start at a light and continue if you are not finished when it turns green.

[SidS1045]

in Massachusetts...being stopped for texting isn't even a moving violation.

It's also virtually unenforceable.  While texting is a violation, dialing a phone number with the phone in the driver's hand isn't (MA hasn't banned hand-held cell use...yet).  Unless the cop can see clearly into the driver's side of the vehicle and see what's being done with the phone, he/she cannot testify in court that a driver was texting.

According to an article in today's Boston Globe, the State Police are trying to figure out how to step up enforcement of the no-texting law.

[SP Cook]

If you consult your state's MV code, I'd almost bet cash US money it says otherwise.

Nowhere in the US Constitution is a presumption of innocence stated explicitly.  Via various Supreme Court decisions, it has been held to be implicit in the protections afforded by the Fifth, Sixth and Fourteenth Amendments.  However, in non-criminal and non-civil cases, which category most MV violations now fall into, there is no explicit or implied presumption of innocence.

Then you would lose. 

WVC §62-1-5a.

People, starting with Californians, have bought this silly idea.  The government says traffic is "not criminal".  We don't buy that.  If they can arrest you, take your money, whatever, then its criminal.  You have the same rights as any other person who is innocent until proven guilty.  There is no such thing, by law here and by reason and common sense everywhere no matter what the government tries to say otherwise, as a "non-criminal offense". 

[SidS1045]

Then you would lose. 

WVC §62-1-5a.

Did you actually read what you cited?

§62-1-5a. Citation in lieu of arrest; failure to appear.
A law-enforcement officer may issue a citation instead of making an arrest for the following offenses, if there are reasonable grounds to believe that the person being cited will appear to answer the charge:

(1) Any misdemeanor, not involving injury to the person, committed in a law-enforcement officer's presence: Provided, That the officer may arrest the person if he has reasonable grounds to believe that the person is likely to cause serious harm to himself or others; and

(2) When any person is being detained for the purpose of investigating whether such person has committed or attempted to commit shoplifting, pursuant to section four, article three-a, chapter sixty-one of this code.

The citation shall provide that the defendant shall appear within a designated time.

If the defendant fails to appear in response to the citation or if there are reasonable grounds to believe that he will not appear, a complaint may be made and a warrant shall issue. When a physical arrest is made and a citation is issued in relation to the same offense the officer shall mark on the citation, in the place specified for court appearance date, the word "arrested" in lieu of the date of court appearance.

So, where is "presumption of innocence" stated in the above cite, and where does it say that MV violations are felonies or misdemeanors are not "civil infractions?"

[MrDisco99]

The due process clause of the 5th amendment applies to any seizure of liberty or property.  There is no "non-criminal" loophole.  The citation is simply a modified form of arrest and release on "free bail" if you will.  If you pay the fine you are implying a guilty plea and waiving your rights.

This means there's nothing stopping you from showing up at your hearing (which is really an arraignment and sentencing hearing), pleading not guilty and demanding a trial by jury.  They really hate it when you do that.  However, because trials cost money, they're likely to try to make a deal with you or drop the charge.  Not guaranteed, though, so be ready to have your bluff called.  Keep in mind the prosecution probably has a pretty solid case

[SP Cook]

Did you actually read what you cited?

and where does it say that MV violations are felonies or misdemeanors are not "civil infractions?"

You need to quit while you are behind.

http://www.courtswv.gov/legal-community/court-rules/criminal-procedure/contents.html


http://www.legis.state.wv.us/WVCODE/Code.cfm?chap=50&art=2#02

"§50-2-3. Criminal jurisdiction; limitations on bail.
In addition to jurisdiction granted elsewhere to magistrate courts, magistrate courts shall have jurisdiction of all misdemeanor offenses committed in the county"

http://en.wikipedia.org/wiki/Misdemeanor

http://thelawdictionary.org/misdemeanor/

http://www.legis.state.wv.us/WVCODE/Code.cfm?chap=17c&art=6#06

e) Unless otherwise provided in this section, any person who violates the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one hundred dollars; upon a second conviction within one year thereafter, shall be fined not more than two hundred dollars; and, upon a third or subsequent conviction within two years thereafter, shall be fined not more than five hundred dollars: Provided, That if the third or subsequent conviction is based upon a violation of the provisions of this section where the offender exceeded the speed limit by fifteen miles per hour or more, then upon conviction, shall be fined not more than five hundred dollars or confined in the county or regional jail for not more than six months, or both.

A basic high school level civics class would do you some good.

[Alps]

You need to quit while you are behind.

You need to quit while you are behind.

... Provide citation of "innocent until proven guilty"

In fact, " any person who violates the provisions of this section is guilty of a misdemeanor " suggests quite the opposite...

[MrDisco99]

Innocent until proven guilty is implied in common law.  It's part of due process, which is a right granted by the 5th and 14th amendments.  It does not require mention by statute, nor does the right to a trial.

Quote the whole thing "...any person who violates the provisions of this section is guilty of a misdemeanor, and upon conviction thereof..."

You have to be convicted in order for the state to punish you for anything.  That's what due process is.  You have the right to demand a trial for anything the state accuses you of.  They make it easy for you to plead guilty instead, though, to save everyone time and money.

[SP Cook]

http://www.legis.state.wv.us/WVCODE/WV_CON.cfm#articleIII


3-4.  Writ of habeas corpus.


     The privilege of the writ of habeas corpus shall not be suspended.  No person shall be held to answer for treason, felony or other crime, not cognizable by a justice, unless on presentment or indictment of a grand jury.  No bill of attainder, ex post facto law, or law impairing the obligation of a contract, shall be passed.

3-14.  Trials of crimes -- Provisions in interest of accused.


     Trials of crimes, and of misdemeanors, unless herein otherwise provided, shall be by a jury of twelve men, public, without unreasonable delay, and in the county where the alleged offence was committed, unless upon petition of the accused, and for good cause shown, it is removed to some other county.  In all such trials, the accused shall be fully and plainly informed of the character and cause of the accusation, and be confronted with the witnesses against him, and shall have the assistance of counsel, and a reasonable time to prepare for his defence; and there shall be awarded to him compulsory process for obtaining witnesses in his favor.

8-10.  Magistrate courts.

Magistrate courts shall have such original jurisdiction in criminal matters as may be prescribed by law, but no person shall be convicted or sentenced for a felony in such courts. In criminal cases, the procedure may be by information or warrant of arrest, without presentment or indictment by a grand jury.


http://www.legis.state.wv.us/WVCODE/Code.cfm?chap=17c&art=6#06§17C-6-3a. Minimum speed regulations; penalty.

(c) Any person who violates the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one hundred dollars; upon a second conviction within one year thereafter, shall be fined not more than two hundred dollars; and upon a third or subsequent conviction within two years thereafter, shall be fined not more than five hundred dollars.

(At this point, one would ask what part of "misdemeanor", "conviction", "fined" and "subsequent conviction" you do not understand.   Maybe "JURY" will help you.

Especially in light of:

http://definitions.uslegal.com/m/misdemeanor/

Or any of 100s of other free sources that simply define misdemeanor and felony.   The two types of crimes.

But one might try this:

http://www.courtswv.gov/public-resources/jury/juryhdbk.htm

Criminal Case -- an action brought in the name of the State of West Virginia to try a person -- the defendant -- who is charged with a crime.

Misdemeanor -- a less serious criminal offense than a felony which is punishable by a fine or imprisonment in jail.

contra:

Civil Case  -- an action brought by a person, company or other entity -- the plaintiff -- to protect some right or to help recover money or property from another person or company -- the defendant.

But if you really want to try to play lawyer:

Foster's Crown Law (1762), p. 255.

http://books.google.co.uk/books?id=4ZI0AAAAIAAJ&printsec=frontcover#v=onepage&q&f=false

And

http://www.legis.state.wv.us/legisdocs/code/02/WVC%20%202%20%20-%20%201%20%20-%20%20%201%20%20.htm

§2-1-1. Common law.
The common law of England, so far as it is not repugnant to the principles of the constitution of this state, shall continue in force within the same, except in those respects wherein it was altered by the general assembly of Virginia before the twentieth day of June, eighteen hundred and sixty-three, or has been, or shall be, altered by the Legislature of this state.

and this:

The Golden Thread of English Justice:

"Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is
the duty of the prosecution to prove the prisoner's guilt..."

(Rumpole, among others, is fond of this quote)

Or you could just read Wikipedia

http://en.wikipedia.org/wiki/Innocent_until_proven_guilty#Common_law

Or you could simply read the definition of another crime, such as theft:

§61-3-13. Grand and petit larceny distinguished; penalties.


http://www.legis.state.wv.us/WVCODE/Code.cfm?chap=61&art=3#03

(a) If a person commits simple larceny of goods or chattels of the value of one thousand dollars or more, such person is guilty of a felony, designated grand larceny ...

vis the misdemeanor (a type of crime) I cited above

http://www.legis.state.wv.us/WVCODE/Code.cfm?chap=17c&art=6#06

e) Unless otherwise provided in this section, any person who violates the provisions of this section is guilty of a misdemeanor

and understand that your statement

"suggests quite the opposite..."

is simply wrong.

And, excellent post, MrDisco99.

[mc78andrew]

There are a lot of lawyers in here.  I come to this forum to escape the one I married to. 

[Brandon]

There are a lot of lawyers in here.  I come to this forum to escape the one I married to. 

A lot of people who think they are lawyers since they've seen LA Law and other such TV shows.

Lawyering is often a very bad idea unless you play a lawyer in real life.