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Mitchell Yielding to State Texting Ban on Spurious Legal-Cost Argument

The statewide texting-while-driving ban passed by our Legislature this year is inspiring Mitchell to repeal its local ordinance on electronically distracted driving. The new state law makes texting while driving a secondary offense, meaning troopers can't pull you over for thumb-screen absorption, but they can enhance your ticket if they stop you for something else and you don't hide your iPhone before they come to your window. Mitchell currently makes texting while driving a primary offense, meaning that's the only reason city cops need to stop you and take your contribution to city government.

Councilman Phil Carlson voted with the council majority last Monday in favor of first reading of the repeal. Carlson prefers uniformity in traffic laws. He also thinks repealing the local ban will save the city some legal bills:

Carlson says that Mitchell should repeal its ban because drivers could fight their tickets in court, which could cost the city money.

"There could potentially be some legal issues with it. For instance, somebody gets ticketed under our ban instead of the state ban, there could be a legal fight over that that could go potentially all the way to the South Dakota Supreme Court," Carlson said [Leland Steva, "Mitchell City Council Takes First Step in Repealing City's Texting Ban," KELO-TV, 2014.04.12].

Drivers can fight lots of tickets in court. There is debate on whether they would win the argument that the state's texting-while-driving ban supersedes any local ban. But how many drivers will litigate? The Mitchell fine is $120. Even the boldest pro se defendant will burn up that much money just in time off from work to go to court well before getting to the complicated and costly state Supreme Court stage.

I'm not saying people should not litigate when they have genuine grievances against improper laws and official actions (or inactions). I'm saying the cost of accessing our justice system, even to get a simple answer about whether state law supersedes local law, is so high that the test case Carlson fears won't materialize from most rational drivers.

Carlson also fails to include in his cost-benefit calculations the public-safety benefits Mitchell gets by more strictly encouraging drivers to keep their eyes on the road. If the tougher local ordinance makes a thousand Mitchellians decide not to pick up the phone and text while crossing town to Cabela's, and if just one of them manages not to crumple someone else's car or run over a pedestrian, the city comes out ahead, even if someday the lawyer Mitchell PD pulls over sues his way out of his $120 ticket.


  1. Mark Remily 2014.04.13

    Police in Aberdeen have been using this law to pull over drivers on suspicion of texting. Mainly at night when there are other consequences to benefit from, the all important DUI. This speaks loudly against 4th amendment rights and should be repealed.

  2. caheidelberger Post author | 2014.04.13

    Drivers could avoid giving police that pretext for pulling them over by turning off and putting down their phones.

  3. Mark Remily 2014.04.13

    Police don't need to see if they are texting. In one instance in Aberdeen. The driver was pulled over just on suspicion. There was no evidence that he was. There was no communication on his phone. He was just pulled over. At 3 AM theres no way the police could tell just by sight. We have to assume that the officer will do the right thing, when in many cases they abuse the law. It happens all the time, everywhere, not just Aberdeen. 4th amendment rights, trampled on.

  4. Deb Geelsdottir 2014.04.13

    In bigger cities, deaths due to texting are really rising. The accidents usually result in multiple deaths and it's usually younger people. Someone drives through a stoplight or sign. They t-bone another car, killing the family inside, plus the several youth in the offending car. Such accidents are weekly horror stories on the news.

    Such things won't happen as frequently in Mitchell or other SD towns because there aren't as many people to kill.

  5. caheidelberger Post author | 2014.04.14

    Mark, I do support the Fourth Amendment. I don't like random checks without reasonable suspicion of any sort, not even the sobriety checkpoints that seem to enjoy common acceptance. But does a texting ban really make it easier for police to make such random stops? If the texting ban went away, wouldn't they still have a passel of other statutes they could use as false pretext for a stop?

    The remedy for Fourth Amendment abuses is not to get rid of public safety laws. The remedy is to punish abusive cops and hire new cops who pass Constitution 101.

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