Author: Attorney J. David Douthit
Distracted driving remains a major cause of traffic accidents and fatalities. CNN reports that distracted driving accounted for 16% of traffic fatalities in the U.S. in 2009, which is unchanged from 2008. Responding to this problem with regard to cellphones, the Virginia General Assembly enacted Va. Code § 46.2-1078.1, which became effective in July, 2009. This statute largely prohibits driving while texting.
However, enforcement of this law presents some practical problems. The statute does not make driving while texting a primary offense; that is, a driver cannot be stopped solely for driving while texting and can only be ticketed for violation of the statute after having been stopped for some other offense. In addition, the statute does not prohibit dialing a cell phone while driving, which can make detecting and proving a violation difficult. For example, on a device where numbers and letters share keys, a driver could easily claim to be dialing rather than texting if stopped.
A recent report from Northern Virginia states that violation of Va. Code § 46.2-1078.1 has resulted in only 18 tickets in the last eight months in Fairfax County. According to that report, Fairfax police are using the requirement that drivers pay full time and attention to driving instead of Va. Code § 46.2-1078.1. Violation of the full time and attention requirement is a primary offense and can result in a fine up to ten times higher that the "driving while texting" statute.
Although the legislature's attempt to make our highways safer by prohibiting texting while driving, hopefully this new law will be amended to be more effective and useful. One change would be to make a violation a primary offense; a second would be to make dialing while driving a violation also. Given the dangers of cellphone use while driving, the legislature should consider these changes.
 See http://www.cnn.com/2010/TRAVEL/09/21/distracted.driving/index.html?iref=allsearch.
 See statute at: http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+46.2-1078.1.