Virginia drivers take caution. Texting while driving in Virginia will now be considered a primary offense. The law has been a secondary offense, which means the police cannot pull you over ONLY for texting while driving. However, starting Monday it will become a primary offense and the police can pull you over for this offense alone.

It may seem like a good idea. However, how will the officer know by looking at a passing vehicle moving quickly that the operator is actually texting versus dialing a phone number? Using a cell phone while driving is not illegal in Virginia. The law that prohibits texting while driving states:

§ 46.2-1078.1. Use of handheld personal communications devices in certain motor vehicles; exceptions; penalty.

It prohibits the following actions:

A. It is unlawful for any person to operate a moving motor vehicle on the highways in the Commonwealth while using any handheld personal communications device to:

1. Manually enter multiple letters or text in the device as a means of communicating with another person; or

2. Read any email or text message transmitted to the device or stored within the device, provided that this prohibition shall not apply to any name or number stored within the device nor to any caller identification information.

This law is poorly written. As written, it does not prohibit typing out a note into your smartphone, or searching the internet. You can still use your keypad, just not for communicating with someone else.

The main problem with this law is that it gives officers too much latitude in initiating a traffic stop. I’m concerned that officers will pull people over who may simply be calling someone while driving. Entering phone numbers in a phone (perfectly legal) looks identical to entering text into a phone (illegal for the purposes of communicating with someone else). How would an officer be able to tell the difference without actually looking at the phone?

Virginia’s law regarding window tint suffers a similar flaw. Since officers are not required to be tint meters, they can pull you over if they THINK your tint MIGHT be too dark. How can an officer really tell if window tint is too dark at night? They cannot. Yet many courts will allow the traffic stop because they say officers are not required to be tint meters.

The result is that officers can pull people over for essentially no reason. I have had many clients stopped for window tint alone, and their window tint turned out to be perfectly legal. And I cannot see how this texting while driving law will be any different. There is no way an officer will be able to tell if someone is using their phone to communicate with someone else, or using it to dial a number, or browse the internet. Take caution before using your phone, even for something perfectly legal.

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