How to Contest a Texting While Driving Ticket

My question involves traffic court in the State of: Illinois

Hi all,
My wife got a ticket for texting while driving, and since we were 100% sure she is not guilty we asked for a trial (judge, no jury).
We just got a letter that the prosecutor asked for continue as the officer will not be available at the date the trial is set for so this gives us some time and I wanted to get some opinions what should be our next move...

First some background...
My wife was standing at a red light when she reached to her phone to put it aside so it won't slide or fall from the dashboard. The officer who was in the car behind her stopped her right after telling her he saw her pressing couple of buttons and he gave her "texting while driving" ticket. My wife told him she touched the phone only to shut it off and put it aside and he can look and see she wasn't texting. The officer reply was "It doesn't matter, I don't care" and gave her the ticket.
We have records from AT&T showing there were no voice calls or data usage at the time of the alleged offense.

I couldn't care less for the $120 ticket, but don't want to have any marks on her 15 years clean driving record, especially when she doesn't deserve it.

So now the questions...
1) Is it wise to go to trial for this?
2) Do we need to prepare anything special other than the call records?
3) Can we contact the prosecutor in order to arrange for a deal based on the evidence we have?
4) The letter for continue was issued 1 week before the trial (3/14) and arrived today which is 3 days before the trail (3/21), can we use this to our advantage?
5) Any other comments/recommendations?

Many thanks,
CK

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Quoting 625 ILCS 5/12-610.2. Electronic communication devices.

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(a) As used in this Section:

"Electronic communication device" means an electronic device, including but not limited to a wireless telephone, personal digital assistant, or a portable or mobile computer while being used for the purpose of composing, reading, or sending an electronic message, but does not include a global positioning system or navigation system or a device that is physically or electronically integrated into the motor vehicle.

"Electronic message" means a self-contained piece of digital communication that is designed or intended to be transmitted between physical devices.

"Electronic message" includes, but is not limited to electronic mail, a text message, an instant message, a digital photograph, a video, or a command or request to access an Internet site.

(b) A person may not operate a motor vehicle on a roadway while using an electronic communication device to compose, send, or read an electronic message.

(c) A violation of this Section is an offense against traffic regulations governing the movement of vehicles.

(d) This Section does not apply to:

(1) a law enforcement officer or operator of an emergency vehicle while performing his or her official duties;

(2) a driver using an electronic communication device for the sole purpose of reporting an emergency situation and continued communication with emergency personnel during the emergency situation;

(3) a driver using an electronic communication device in hands-free or voice-operated mode;

(4) a driver of a commercial motor vehicle reading a message displayed on a permanently installed communication device designed for a commercial motor vehicle with a screen that does not exceed 10 inches tall by 10 inches wide in size;

(5) a driver using an electronic communication device while parked on the shoulder of a roadway; or

(6) a driver using an electronic communication device when the vehicle is stopped due to normal traffic being obstructed and the driver has the motor vehicle transmission in neutral or park.

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Quote:

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Quoting CKO

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1) Is it wise to go to trial for this?

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That's your call to make (no pun intended) - or I should say, your wife's. It's her time and money.

Quote:

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Quoting CKO

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2) Do we need to prepare anything special other than the call records?

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Any other evidence you have....

The problem is, even if she did not click "send" such that there would be a record, she could still have been using the cell phone to compose a message, or to review a message.

Quote:

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Quoting CKO

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3) Can we contact the prosecutor in order to arrange for a deal based on the evidence we have?

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People cut deals even when they're admitting guilt. It's ultimately up to the prosecutor, but yes, you can.

Quote:

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Quoting CKO

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4) The letter for continue was issued 1 week before the trial (3/14) and arrived today which is 3 days before the trail (3/21), can we use this to our advantage?

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You believe that's relevant to what, for what reason?

Thank you Mr. Knowitall for the important information and answers.

I understand it is very difficult to contest this alleged offense so Im trying to find ways to get this either dismissed or reduced to a violation that will not incur points or mark the record.

I asked the court clerk for a copy of the officer's notes and was told (over the phone) no notes were filed, only the actual ticket.
In addition there is no new date for the next bench trial so I should just wait until I receive a letter with new trial date.

Can I use any of the above to build my case?
For example can I use the facts there are no notes?
We are already almost 2 months after the ticket was issued and without even knowing when the trial will be set to it probably will be over 3 months after the ticket was issued. Is there any defined time when a case will automatically be dismissed due to time passing from issuing the ticket?

Also if eventually going to trial, the fact the officer was in a vehicle behind my wifes car which has a tinted rear window, which really raise a doubt how the officer could see what my wife is doing with the phone. How do I use this as defense?

And last but not least, will I be allowed to represent my wife in a bench trial or she must represent herself?

Thanks,
CK

If the officer saw your wife with the cell phone in her hand, and your wife told the officer, "I was only holding it because it was sliding off the dashboard", the "tinted window" idea isn't going to work. If your wife wants notes other than any recorded on the ticket, to the extent that any exist, she needs to conduct discovery. The absence of notes does not translate into the officer's being unable to testify to a more complete set of facts than appears on the face of the ticket.

It's difficult to tell you what the officer is going to say, or what memory he will have (or claim to have) of the incident. He may be willing to have the prosecutor cut a deal, he may testify that he can't be sure if your wife's story is true, or he could present interpretations of her statements and conduct (fair or unfair) that support a conviction.

No, you cannot represent your wife unless you are an attorney licensed to practice in your state.

Notes are not filed with the court. They are usually kept on the backside of the officer’s copy of the citation, which he can then review to refresh his memory.

I can’t speak for your state, but in mine the officer’s notes would be obtained by your wife writing a letter to the police department, addressed to the Custodian of Records. The letter would be marked Informal discovery request and include a copy of the citation issued to your wife. Your wife would then ask for a copy of the officer’s copy of the citation along with copies of any notes he may have prepared in connection with the matter.

It is a good idea to also ask for copies of any audio and video recordings that may have been made of the enforcement contact. (Officers often carry personal recorders and police cars are often equipped with dash cams). I say this because during the enforcement contact, drivers have a habit of making terribly incriminating statements. Once the recordings are reviewed and you hear what statements your wife made, it may change her entire defense strategy or she may just decide to plead guilty.

Is traffic school an option?

Can I call the prosecuor in advance and ask for traffic school?
Can such deal be done prior to the trial and we won't need to go to court?

Update and question...

I talked with the prosecutor and he offered the following options:
1) Plead guilty with the court clerk and ask for traffic school (prior to the trial)
2) Plead guilty at beginning of trial and ask for court supervision (will need to pay ticket and I assume court fees)
3) Reduce ticket to non-moving violation (something safety) with fine only (although fine is a little higher than original ticket)
4) Go to trial and prove not guilty

I think I'm leaning toward option 3 (non-moving violation) just to avoid the hassle of going to court, but wanted to ask if this is recommended by the experts here?

Thanks,
CK

I can't speak for your state, but in mine if you are eligible for and complete trafic school, the ticket does not go on your record, eliminating any problems with your insurance company and DMV.

You might want to check and see how it works in your state.