Does talking on a cell phone ever consitute a failure to exercise due care if you are not under 18 and have a class C driver's license? Per the officer, I was pulled over for exceeding the speed limit by 12 mph and for talking on a cell phone. He then issued me two tickets; one for speeding and one for failure to exercise due care saying that while it is legal to talk on your cell phone whille driving in Georgia, it is not legal to do so while committing another moving violation. I pled "not guilty" but do not want to incur the lost time at work to go defend myself if there is case law that allows this exception to the Georgia law.
-
Welcome to our legal community! Click here or the create new topic button to ask a question and receive answers and comments from our friendly and helpful legal community.
Articles that answer frequent legal questions are in our Law Guide. Important legal news is reported in The Law JournalYou can find a lawyer near you in the Lawyer Directory. If you know that you need to hire an attorney, you can submit a case review from a lawyer.
due care and talking on a cell phone
- Thread Starter DBerry
- Start date
- Status
mightymoose
Moderator
You have a tough argument ahead of you. If possible I suggest you pay the fines and take a traffic school class to try and keep the offense off your record. It will cost you, but that is a far more likely way of keeping your record clean. Had you not been commttinf another violation the officer may have a tougher argument to make, but the officer has tons of statistics in his favor.
In short, I believe the officer is right and you will get nowhere arguing a defense.
In short, I believe the officer is right and you will get nowhere arguing a defense.
disagreeable
Well-Known Member
GA code 40-5-57(C)1A covers penalty for use of a hands free phone by a minor. It appears you license is going to be suspended.
http://www.lexisnexis.com/hottopics/gacode/
40-6-241.1. Definitions; prohibition on certain persons operating motor vehicle while engaging in wireless communications; exceptions; penalties
(a) As used in the Code section, the term:
(1) "Engage in a wireless communication" means talking, writing, sending, or reading a text-based communication, or listening on a wireless telecommunications device.
(2) "Wireless telecommunications device" means a cellular telephone, a text-messaging device, a personal digital assistant, a stand alone computer, or any other substantially similar wireless device that is used to initiate or receive a wireless communication with another person. It does not include citizens band radios, citizens band radio hybrids, commercial two-way radio communication devices, subscription-based emergency communications, in-vehicle security, navigation, and remote diagnostics systems or amateur or ham radio devices.
(b) Except in a driver emergency and as provided in subsection (c) of this Code section, no person who has an instruction permit or a Class D license and is under 18 years of age shall operate a motor vehicle on any public road or highway of this state while engaging in a wireless communication using a wireless telecommunications device.
(c) The provisions of this Code section shall not apply to a person who has an instruction permit or a Class D license and is under 18 years of age who engages in a wireless communication using a wireless telecommunications device to do any of the following:
(1) Report a traffic accident, medical emergency, or serious road hazard;
(2) Report a situation in which the person believes his or her personal safety is in jeopardy;
(3) Report or avert the perpetration or potential perpetration of a criminal act against the driver or another person; or
(4) Engage in a wireless communication while the motor vehicle is lawfully parked.
(d) (1) Any conviction for a violation of the provisions of this Code section shall be punishable by a fine of $150.00. The provisions of Chapter 11 of Title 17 and any other provision of law to the contrary notwithstanding, the costs of such prosecution shall not be taxed nor shall any additional penalty, fee, or surcharge to a fine for such offense be assessed against a person for conviction thereof. The court imposing such fine shall forward a record of the disposition of the case of unlawfully operating a motor vehicle while using a wireless telecommunications device to the Department of Driver Services.
(2) If the operator of the moving motor vehicle is involved in an accident at the time of a violation of this Code section, then the fine shall be equal to double the amount of the fine imposed in paragraph (1) of this subsection. The law enforcement officer investigating the accident shall indicate on the written accident form whether such operator was engaging in a wireless communication at the time of the accident.
(e) Each violation of this Code section shall constitute a separate offense.
http://www.lexisnexis.com/hottopics/gacode/
40-6-241.1. Definitions; prohibition on certain persons operating motor vehicle while engaging in wireless communications; exceptions; penalties
(a) As used in the Code section, the term:
(1) "Engage in a wireless communication" means talking, writing, sending, or reading a text-based communication, or listening on a wireless telecommunications device.
(2) "Wireless telecommunications device" means a cellular telephone, a text-messaging device, a personal digital assistant, a stand alone computer, or any other substantially similar wireless device that is used to initiate or receive a wireless communication with another person. It does not include citizens band radios, citizens band radio hybrids, commercial two-way radio communication devices, subscription-based emergency communications, in-vehicle security, navigation, and remote diagnostics systems or amateur or ham radio devices.
(b) Except in a driver emergency and as provided in subsection (c) of this Code section, no person who has an instruction permit or a Class D license and is under 18 years of age shall operate a motor vehicle on any public road or highway of this state while engaging in a wireless communication using a wireless telecommunications device.
(c) The provisions of this Code section shall not apply to a person who has an instruction permit or a Class D license and is under 18 years of age who engages in a wireless communication using a wireless telecommunications device to do any of the following:
(1) Report a traffic accident, medical emergency, or serious road hazard;
(2) Report a situation in which the person believes his or her personal safety is in jeopardy;
(3) Report or avert the perpetration or potential perpetration of a criminal act against the driver or another person; or
(4) Engage in a wireless communication while the motor vehicle is lawfully parked.
(d) (1) Any conviction for a violation of the provisions of this Code section shall be punishable by a fine of $150.00. The provisions of Chapter 11 of Title 17 and any other provision of law to the contrary notwithstanding, the costs of such prosecution shall not be taxed nor shall any additional penalty, fee, or surcharge to a fine for such offense be assessed against a person for conviction thereof. The court imposing such fine shall forward a record of the disposition of the case of unlawfully operating a motor vehicle while using a wireless telecommunications device to the Department of Driver Services.
(2) If the operator of the moving motor vehicle is involved in an accident at the time of a violation of this Code section, then the fine shall be equal to double the amount of the fine imposed in paragraph (1) of this subsection. The law enforcement officer investigating the accident shall indicate on the written accident form whether such operator was engaging in a wireless communication at the time of the accident.
(e) Each violation of this Code section shall constitute a separate offense.
mightymoose
Moderator
OP is not under 18.
That's correct, I am not a minor nor do I hold a Class D license. The statute for failure to excercise due care indicates that "proper use of a cell phone" is specifically allowed in Georgia (with the provisions cited above that make it clear this specific exception does not apply to minors and to holders of learners' permits). I suppose the state's argument might be that my use of the cell phone was not "proper" since I was supposedly distracted by it and was, therefore, speeding. People speed for all kinds of reasons though, including being distracted by things other than cell phones and yet the officer decided to specify this one thing which is specifically EXCEPTED by the law. So in a way, it feels like double jeopardy since I have already paid the speeding ticket - i.e. I was cited for speeding and for the alleged reason I was speeding. Huh???
Here's the code:
§ 40-6-241. Driver to exercise due care; proper use of radios and mobile telephones allowed
A driver shall exercise due care in operating a motor vehicle on the highways of this state and shall not engage in any actions which shall distract such driver from the safe operation of such vehicle, provided that, except as prohibited by Code Sections 40-6-241.1 and 40-6-241.2, the proper use of a radio, citizens band radio, mobile telephone, or amateur or ham radio shall not be a violation of this Code section.
40-6-241.1 is cited above. 40-6-241.2 revolves around writing, sending, or reading text based communication while operating motor vehicle which is prohibited.
§ 40-6-241. Driver to exercise due care; proper use of radios and mobile telephones allowed
A driver shall exercise due care in operating a motor vehicle on the highways of this state and shall not engage in any actions which shall distract such driver from the safe operation of such vehicle, provided that, except as prohibited by Code Sections 40-6-241.1 and 40-6-241.2, the proper use of a radio, citizens band radio, mobile telephone, or amateur or ham radio shall not be a violation of this Code section.
40-6-241.1 is cited above. 40-6-241.2 revolves around writing, sending, or reading text based communication while operating motor vehicle which is prohibited.
disagreeable
Well-Known Member
I read their post wrong. MY BAD
disagreeable
Well-Known Member
Sounds like the fact that you were speeding makes a good case. Especially if you apologized to officer referring to your being on phone.
I didn't apologize. He asked if I knew why he pulled me over. I said "Not exactly" (because everyone was going the same speed). He said it was because I was speeding and talking on my cell phone. I said that I thought it was legal to talk on your phone while driving in Georgia. He said "Not while you're comitting another moving violation". I find no support for that interpretation in the cited law but I realize that officers are often given a lot of leeway; regardless of whether the law technically supports them. Is that why you think my speeding makes a good case for them? Again, feels like being cited twice for the same thing - speeding and the reason I was speeding especially since the law states that talking on a cell phone is NOT a failure to exercise due care.
mightymoose
Moderator
Precisely. If you argue the matter in court you might have some success getting the cell phone violation tossed, but still be on the hook for speeding. By that time you might no longer be eligible for traffic school go keep both off your record.
If you intend to fight the citation you should find out whether you can request traffic school in court or if it must be done prior... or if it is even an option with the cell phone violation.
No, it is not a double jeopardy situation. You are required to pay the fine prior to court and it is considered bail. Should you fail to show or lose your case they will not have to collect. Should you win then the payment would be refunded. No judgment is actually made until the court date.
mightymoose
Moderator
I think it all hinges on the word "proper". It would be argued that proper use would include a safe speed.
I see. I have already paid the speeding ticket which, in Georgia, constitutes a guilty plea. I am contesting only the failure to exercise due care. I can say with certainty that I was not speeding because of the cell phone - I was speeding because we ALL speed on this stretch of road (no houses or businesses on either side of a divided 4-lane highway) and I would have been going that fast whether I was on my phone or not. I do realize, however, that they will not much care about that. Thanks for your time.
- Status
Share this page
