North Dakota Supreme Court Overturns Drug Charges Because Driver Was Playing Music on His Phone Not Texting

Forum file photo of a female driving car and using mobile phone, selective focus

In the State of North Dakota it is illegal to communicate via text (including things like emailing, texting, tweeting, etc.) while driving. Here’s the actual law, section 39-08-23 of the North Dakota Century Code:

The law does ban any use of an electronic device by minors under the age of 18 (that’s section 39-08-24 of the code), but if you ‘re over 18 you can look at your phone to dial a number or pick out a song on Spotify.

That distinction became an issue in a recent case before the North Dakota Supreme Court involving relatively minor drug charges. In North Dakota vs. Morsette, the defendant Travis James Morsette was charged with possession of a controlled substance and unlawful possession of drug paraphernalia.

During proceedings he moved to suppress evidence because the traffic stop which precipitated his arrest for drug charges was unlawful. “The officer initiated a traffic stop based on his observations of the cell phone screen manipulations. Morsette told the officer he was changing the music on his cell phone. The officer conducted an investigation and Morsette was arrested and charged with possession of a controlled substance and unlawful possession of drug paraphernalia,” the state Supreme Court’s opinion reads.

Current law makes a distinction between messaging on your phone and other types of activity, like picking out music. “Both proscribed and permitted activities appear to encompass actions that may require finger-to-phone tapping,” Justice Lisa Fair McEvers wrote in the unanimous opinion. “For example, the proscribed activity of composing an electronic message could involve finger-to-phone tapping and the permitted activity of entering a telephone number could involve finger-to-phone tapping.”

Some might argue this situation illustrates the need for stricter regulation of cell phone use by drivers. To me it illustrates the absurdity of modern distracted driving laws.

“If the officer is unable to articulate why he thought Morsette’s conduct violated the statute, it is not reasonable to conclude he made a reasonable mistake of fact,” she continued. “A suspicion so broad that would permit law enforcement to stop a substantial portion of the lawfully driving public is not reasonable.”

Some might argue this situation illustrates the need for stricter regulation of cell phone use by drivers. To me it illustrates the absurdity of modern distracted driving laws.

Even if we made all use of cell phones, for whatever purpose, illegal while driving it would still be legal to eat or change the radio station or talk to the passengers in your car. All distractions which also contribute to road collisions. Besides, anyone who drives on our roads can see we’re fighting a losing battle against texting while driving anyway.

I’m not condoning the activity, only pointing out that our ability to address it through the criminal code is every limited.

How much of a problem is distracted driving anyway? Despite the hype the issue has received in recent years from grandstanding politicians and crusading law enforcement officials, our roads have gotten steadily safer.

According to data from the National Highway Transportation Safety Administration, the rate of road fatalities per 100 million vehicle miles traveled in 1990 was 2.06.

In 2017 that number was 1.16, a 43 percent reduction.

Somehow over 27 years – despite a rise in distractions in our vehicles, from phones to GPS units to elaborate built-in entertainment and navigation systems – the fatality rates on our roads was cut nearly in half.

Maybe this isn’t as a big a problem as some make it out to be.

Rob Port is the editor of SayAnythingBlog.com, a columnist for the Forum News Service, and host of the Plain Talk Podcast which you can subscribe to by clicking here.

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