Fifth District: Defendants Must Prove Exception to Avoid Texting-While-Driving Conviction

When a driver is charged with texting while driving, it’s the driver, not the state, who must prove whether an exception in the law applies, the Fifth District Court of Appeals ruled.

The state law prohibiting distracted driving lists 13 exceptions. They include texting police in an emergency or texting while parked on a road due to an emergency or road closure.

James Haven was cited with the texting-while-driving offense in October 2023. He argued the state had to prove beyond a reasonable doubt that none of the exceptions applied in his case.

Although the state must prove the elements of a criminal offense, a defendant claiming that one of the exceptions in the texting-while-driving law applies must assert and prove that claim, the Fifth District unanimously concluded. The June 2024 ruling upheld the decision of the Licking County Common Pleas Court.

Trooper Stops Driver for Texting
Havens’ case went to trial before a judge in November 2023. An Ohio State Highway Patrol trooper testified that the defendant was driving with a cellphone in his hand, his wrist on the steering wheel, and his fingers manipulating the phone.

R.C. 4511.204 states, “No person shall 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.” The offense is called “operating a motor vehicle while using an electronic wireless communication device.”

The judge found Havens guilty. Havens wasn’t fined, but he was ordered to pay costs.

Appeals Court Reviews How Exceptions Work
The 13 exceptions in the law include when people are contacting law enforcement, a hospital, or others in an emergency; when using the speaker phone function as long as they’re not holding or supporting the device with their body; or if operating a commercial truck while using a mobile data terminal.

In the Fifth District decision, Judge Andrew King wrote that the law’s exceptions are “affirmative defenses.” This type of defense is defined as “an excuse or justification that is peculiarly within the knowledge of the accused.”

Judge King gives examples. One exception is for people texting while driving a utility vehicle in the course of their duties. Only the driver would know whether he or she is on duty, the judge notes. Another exception is for people holding the device near their ear, but not manually entering numbers, letters, or symbols into the device. The opinion states that it might seem as if a law enforcement officer could examine the device to determine whether the driver had been tapping in items. However, the opinion notes, the law prohibits an officer from seizing or searching the phone without consent or a warrant.

“This further suggests that the legislature intended the driver to come forward with evidence in support of his or her legal excuse for using the device,” the opinion states.

The court also found that treating the exceptions as affirmative defenses, which the accused must raise and prove, aligns with other traffic offense statutes and related case law. Whenever a traffic crime can be negated by an excuse or justification, those exceptions are consistently treated as an affirmative defense, the court explained.

The court concluded that the burden of proof for an affirmative defense rests with the accused.

Judges W. Scott Gwin and John Wise joined the decision.

State v. Havens, 2024-Ohio-2204.

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