In a recent United States Supreme Court decision, Riley v. California,  the Court struck a surprising, yet refreshing blow to broad police power to search incident to arrest. If there is probable cause to arrest, and the arrest is made, your person is open to search and seizure, even if you don't consent. Under old law, your mobile phone was fair game in a search after arrest, but now a warrant is required. As an Asheville speeding ticket lawyer, I see numerous traffic ticket violations in Asheville for texting while driving. I believe this highly publicized Supreme Court decision may make aware many people who didn't know before, that they never had to hand over their phone in the first place!

   Texting while driving has obvious public safety concerns, however, despite what many people may believe, it also poses significant privacy, and constitutional concerns. I say this because you can be seized on the side of the road because you are legally adjusting your mp3 player (this was a radio or cassette deck in the old days my contemporaries), or dialing a phone number. These are actions the NC statute (§ 20-137.4A) leaves out, and whether or not you are actually texting is nearly impossible to prove without handing over your cell phone to police. 

   Before the Supreme court case on cell phone searches, you really weren't obligated to hand over your phone for a search in the first place after police observed, and pulled you. I find that most clients, intimidated and unsure, generally hand the phone over anyway, which is consent that overrides even the new warrant requirement. Now, with the Riley case decided, I think it is pretty obvious that you certainly don't have to allow police to look at your cell phone. Without the phone, there is practically no way to prove you were texting.  In fact, now, even if you are arrested you don't have to hand the phone over. Of course, texting while driving is an infraction so no one in NC is ever arrested on suspicion of that alone. 

   Texting while driving carries a stiff fine in NC, but it is still an infraction and has no DMV impact for non-commercial drivers. If you've been cited for an infraction, misdemeanor speeding, or traffic ticket violation in Asheville, NC or surrounding Western NC areas, contact an Asheville traffic attorney today.

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