Court: Drivers, not prosecutors, must prove they weren't illegally using phone

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COLUMBUS, Ohio (WCMH) – An Ohio appeals court ruled it's the responsibility of drivers accused of violating the state’s distracted driving law, not prosecutors, to prove they were not illegally using their phone behind the wheel. 

A distracted driving law making it illegal for drivers to use their phone in most instances was passed in the state in April 2023. The law allows law enforcement to pull over a driver solely for using their phone. Previously, they had to wait until they observed a “primary violation,” such as disobeying a traffic signal. 

However, there are exceptions to the ban. Under the law, drivers can still report an emergency, use their phone while stopped at a traffic light, hold their phone to their ear on a call (as long as it takes a single swipe to start the call), and use other functions that have “single swipe” controls.

In October, James Havens was cited for violating the law after he was reportedly seen driving while using his phone. Havens was found guilty in a November trial in Licking County Common Pleas Court and ordered to pay court costs. 

Havens appealed, arguing that, among other things, prosecutors failed to show that none of the exemptions in the law applied to his case. A Fifth District Court of Appeals three-judge panel unanimously decided against his argument last month.

In the ruling, Judge Andrew King said the exceptions to the distracted driving law are affirmative defenses, or a defense that admits the action but avoids liability through an excuse or justification; therefore, it is up to the defendant to prove an excuse applies.

King argued that Ohio lawmakers intended to put the burden of proof on the defendants to show they had a legal excuse to use their phone while driving, by using information only the driver would know. For example, a person driving a public safety vehicle while using a phone in the course of their duties would be permitted under the law. 

“While an officer could observe whether the vehicle is a public safety vehicle, only the driver would know whether he or she is on duty,” the ruling read. 

Another example the ruling offered is that the law denies officers the authority to search a driver’s phone without consent or a warrant. 

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

When the judge reviewed various relevant statutes and precedents related to other traffic offenses, he found it “consistently the case that whenever the offense can be negated by an excuse or justification, it is treated as an affirmative defense,” which must be proven by the defendant, the ruling says. 

Judges W. Scott Gwin and John Wise concurred with King’s opinion.