Written by attorney David P. Gilbert

Florida Texting and Driving Offense - Effective 10/1/2013

According to the National Safety Council, texting and driving results in over one million traffic crashes each year and some studies indicate that nearly 25% of crashes are the result of cell phone use. As a result of these studies and other similar statistics, the Florida Legislature has enacted (effective 10/1/13) Florida Statute 316.305, titled "Wireless communications devices; prohibition."

Under Florida Statute 316.305(3)(a), "a person may not operate a motor vehicle while manually typing or

entering multiple letters, numbers, symbols, or other characters into a wireless communications device or while sending or reading data in such a device for the purpose of nonvoice interpersonal communication, including,but not limited to, communication methods known as texting, e-mailing, and instant messaging. As used in this section, the term “wireless communications device" means any handheld device used or capable of being used in a handheld manner, that is designed or intended to receive or transmit text or character-based messages, access or store data, or connect to the Internet or any communications service as defined in s. 812.15 and that allows text communications. For the purposes of this paragraph, a motor vehicle that is stationary is not being operated and is not subject to the prohibition in this paragraph."

A review of this section makes it clear that the law should not apply to cell phone (or other handheld device) use for non-communication purposes, i.e. navigation, music, viewing photos, playing games, taking pictures of yourself driving, videotaping, etc. Also, this statute does not apply to "stationary" vehicles, which should include vehicles stopped at traffic lights or stop signs, parked vehicles, inoperable vehicles, etc. This exceptions are confirmed in Florida Statute 316.305(3)(b) which reads:

"Paragraph (a) does not apply to a motor vehicle operator who is:

  1. Performing official duties as an operator of an authorized emergency vehicle as defined in s. 322.01, a law enforcement or fire service professional, or an emergency medical services professional.
  2. Reporting an emergency or criminal or suspicious activity to law enforcement authorities.
  3. Receiving messages that are: a. Related to the operation or navigation of the motor vehicle;b. Safety-related information, including emergency, traffic, or weather alerts; c. Data used primarily by the motor vehicle; or d. Radio broadcasts.
  4. Using a device or system for navigation purposes.
  5. Conducting wireless interpersonal communication that does not require manual entry of multiple letters, numbers, or symbols, except to activate, deactivate, or initiate a feature or function
  6. Conducting wireless interpersonal communication that does not require reading text messages, except to activate, deactivate, or initiate a feature or function.
  7. Operating an autonomous vehicle, as defined in s. 316.003, in autonomous mode.

The law further states that "only in the event of a crash resulting in death or personal injury, a user’s billing records for a wireless communications device or the testimony of or written statements from appropriate authorities receiving such messages may be admissible as evidence in any proceeding to determine

whether a violation of paragraph (a) has been committed."

A texting and driving offense is a non-criminal, non-moving violation (no points assessed for conviction), unless a person is caught two or more times within a five year period (since last conviction), then the offense becomes a moving violation (three points).

"Enforcement of this section by state or local law enforcement agencies must be accomplished only as a secondary action when an operator of a motor vehicle has been detained for a suspected violation of another provision of this chapter, chapter 320, or chapter 322.

Under the current law, you can only be cited for "texting and driving" if you are already detained (pulled over) for another suspected traffic violation (speeding, crash, driving on suspended license, etc) .Law enforcement may only obtain your phone records if you are involved in a crash that results in serious bodily injury or death, so this offense will be very difficult for the officer to prove unless you admit that you were texting. You are not required to incriminate yourself, so don't do it.

If you have received a citation for "texting and driving" in the Tampa Bay area, give me a call to discuss your charge (813) 501-5002.

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