Columbus OVI/DUI Attorney Blog
Ohio’s significantly revised law ‘Driving While Texting’ went into effect on April 4, 2023. When a criminal law is created or revised, it takes a while for the law to be the subject of appellate court decisions. In one of the first decisions interpreting the revised ‘Driving While Texting’ law, a court of appeals concluded the exceptions to the law are affirmative defenses.
Ohio’s ‘Driving While Texting’ Law
The ‘Driving While Texting’ law, found in Ohio Revised Code section 4511.204, prohibits more than texting. The statute makes it unlawful to “operate a motor vehicle on any street, highway, or property open to the public for vehicular traffic while using, holding, or physically supporting, with any part of the person’s body, an electronic wireless communications device.” An ‘electronic wireless communications device’ includes, but is not limited to, a cell phone.
Exceptions to the ‘Driving While Texting’ Law
The law contains exceptions. For example, the prohibition against using/holding/supporting an electronic wireless communications device does not apply to:
- Driving a public safety vehicle while using an electronic wireless communications device in the course of the person’s duties
- Storing the device in a holster, harness, or article of clothing
- Holding the device near one’s ear for a call without manually entering numbers/letters/symbols
- Using speaker phone without holding or supporting the phone
- Using the device while in a stationary position outside the lane of travel or at a red light
- Using the device for navigation or vehicle operation without holding or supporting it and without manually entering letters/numbers/symbols
- Using the device with a single touch or swipe without manually entering letters/numbers/symbols and without holding or supporting the phone
- Using technology that integrates the device with the vehicle without manually entering letters/numbers/symbols and without holding or supporting the device
- Contacting, for emergency purposes, law enforcement, a hospital, etc
Who Must Prove the Presence or Absence of an Exception
In State v. Havens, the Fifth District Court of Appeals addressed which party must prove the presence or absence of an exception to the ‘Driving While Texting’ law. Havens was charged with Driving While Texting and took the case to trial. At the trial, an officer testified Havens was driving with a cell phone in his hand and was manipulating the phone with his fingers. The officer did not testify about the presence or absence of circumstances which would be exceptions to the law’s prohibitions. Havens was found guilty and appealed his conviction to the Court of Appeals.
On appeal, Havens argued he should not have been found guilty because the prosecution did not prove the absence of the exceptions. The appellate court concluded the presence of an exception is an affirmative defenses because it is, “A defense involving an excuse or justification peculiarly within the knowledge of the accused, on which the accused can fairly be required to adduce supporting evidence.” As the presence of an exception is an affirmative defense, the defendant must provide evidence of the exception and must prove the existence of an exception by a preponderance of the evidence. Havens did not introduce evidence to prove the existence of an exception, so his conviction was affirmed.
Future Litigation
Attorneys sometimes do not know how a new or revised law will be interpreted. This appellate decision makes it clear the exceptions in the ‘Driving While Texting’ law will be interpreted as affirmative defenses. Going forward, defense attorneys will know they must introduce evidence to prove the existence of an exception to the law’s prohibitions.