September 09, 2013 | Posted in DUI

By Tim George

On January 13, 2013, shortly after midnight, a motorist drove past a stationary police vehicle. As the motorist passed, police saw an illuminated cell phone screen for two or three seconds being held up in front of the driver with his right hand toward the middle of his SUV's windshield. The police then followed the motorist but did not see anything unusual or out of the ordinary other than the illuminated cell phone screen. No other traffic or pedestrians were in the vicinity. The police later stopped the motorist on the assumption that the driver could have been texting in violation of 75 P.S. §3316(a) (Prohibiting Text-Based Communications). The police also stopped the motorist because the way the cell phone was being held could have obstructed his vision of the roadway. After the stop, the police detected an order of alcoholic beverage on his breath and when the motorist failed field sobriety tests he was arrested for DUI.

The motorist challenged the lawfulness of the motor vehicle stop claiming that the police lacked sufficient facts or cause to stop him in the first place. Erie DUI attorney, Tim George, questioned the police at the preliminary hearing and later filed a suppression motion in the Erie County Court of Common Pleas. After a suppression hearing was held, the Court issued an opinion.

In the opinion, filed August 14, 2013, the Court explained why the police were not justified in stopping the motorist as follows:

As to the careless driving charge, it is evident that under the above said law that a violation either occurred or did not when the Defendant's vehicle passed in front the police car and therefore probable cause was necessary at the time of the stop. The facts clearly do not substantiate the conclusion on the violation of careless driving based upon the observation that the cell phone, as held, "could have" obstructed the driver's view of the roadway. (Footnote omitted).

Similarly, whether or not the Defendant was in violation of the Motor Vehicle Code for engaging in prohibited text-based communications must have taken place during the two (2) or three (3) seconds the Defendant passed by the police. Further, investigation would not (and did not) substantiate this charge. (Footnote omitted). Therefore, probable cause was necessary for a stop based on this alleged violation as well. Clearly such was not present considering all of the uses to which the Defendant could have been engaged in with the cell phone under these facts. Even if one were to apply the "reasonable suspicion" standard, the mere holding of a cell phone with a lit screen in the manner described cannot give rise to such considering the myriad uses of a cell phone (calling, receiving a call, talking, listening to music, checking weather, time, contacts, calendar, navigation, applications, etc.). To conclude that the Defendant was texting is not reasonable but merely speculative and cannot constitute legal grounds to conduct a stop of the Defendant's vehicle on a public roadway especially where there is no other outward manifestation the motor vehicle code violation is or has occurred.

As a result of the Court's decision, all evidence obtained after the motor vehicle stop was suppressed, including the evidence of intoxication which led to the DUI arrest. All charges were later dropped by the Commonwealth. The decision highlights the difficulty police have enforcing 75 P.S. §3316(a) (Prohibiting Text-Based Communications) which bans all text-based communications, but still allows motorists to use their cell phones in countless other ways without violating the law.

Tim George is a lawyer in Erie Pennsylvania who represents people in Erie, Warren, Venango, Clarion and Meadville, Pennsylvania who face criminal charges or DUI allegations. Mr. George also represents people in catastrophic car or truck accident and medical malpractice cases. You can read more about Tim here or to schedule a private, no obligation consultation, by calling toll free (888) 748-9909.