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It's hard to prove cell phone infraction

We seem to have a lot of single vehicle accidents ... However, there never seems to be any mention or inquiry into the use of cellphones. Each time I drive somehwere, I see people looking down while at the wheel. Why do the accident reports never mention this, if for no other reason than to educate us about the danger of texting and cellphone use while driving?

— Heidi S., Medford

That question is a Pandora's box, Heidi. The short answer is, it's not quite that simple.

On the news side, we would run the cell phone connection if it's included in the police reports or comments from officers. Keeping in mind that authorities themselves usually don't know the answer themselves right away, it can take a while to know if a cellphone was involved. In the interest of timely reports, we publish the best information we have to date.

Part of the problem is that the law on cellphone use leaves room for interpretation. Texting is clearly against Oregon law, but "use" is a term that the law fails to make plain.

ORS 811.507 prohibits the use of voice or text communication while driving as a traffic violation, a misdemeanor that has numerous exceptions. This law is a primary offense, which means officers can stop someone solely on these grounds.

While the law states "A person commits the offense of operating a motor vehicle while using a mobile communication device," a recent court case in Oregon found that the law failed to define what "use" means in this context.

Because the law specified only voice and text communication in its scope and intent, the court found that other activities on a phone aren't covered under this legislation — it says nothing about changing music or scrolling through your Twitter feed. The court held that the officer did not have probable cause to pull over the driver, so the stop was in violation of Oregon law.

"The way that the law's written, an officer has to see a person talking on the phone or texting," Medford Police Department Special Services Sgt. Don Lane says. "Simply handling a phone does not put that in violation."

Lane said even if officers suspect that cellphone use was involved in a serious accident, it can be difficult to prove. Shy of having a driver on scene hand over their cellphone and admit to texting behind the wheel, officers need probable cause to search a phone.

If officers have reason to believe the phone was involved — for example, a witness in the vehicle said they saw the driver texting — they can apply for a search warrant, which must be approved by a judge. Once they obtain a warrant, officers are then able to do a forensic analysis of the phone, including looking up time stamps to determine if texts were being sent or received at the time of a crash.

But that doesn't happen in a typical vehicle accident. And when it does, the incident has often already long since passed out of the public eye.

"That would be more than likely a serious case, and we may do a press release on that, but we won't have cellphone data. It takes a while to get done," Lane says. "We'll do the initial, then a case goes to a DA's office ... . An investigation has to go on — that'll be a day to weeks down the road, and at that point, it's no longer under (police jurisdiction) to make press releases about it."

Send questions to “Since You Asked,” Mail Tribune Newsroom, P.O. Box 1108, Medford, OR 97501; by fax to 541-776-4376; or by email to youasked@mailtribune.com. To see a collection of columns, go to mailtribune.com/youasked. We’re sorry, but the volume of questions received prevents us from answering all of them.