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this post was submitted on 04 Jul 2024
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The police still have to see you messing with your phone while driving before charging you. It's just up to you to prove you were doing one of the allowed types of interaction, such as swiping to change songs, because the police are not allowed to search your phone.
The main problem with this is that there's literally zero way to prove this, one way or the other. There are no logs with that level of detail, nor is there a (usable) timestamp of the observed infraction.
The best you could do is show that you did not send a text message, or a Facebook post, etc. Not only does this fail any chain of custody concerns (since you can't get a certified copy from an independent party), it's also trying to (impossibly) prove a negative.
Even if you could, that's still not good enough. You have to show, conclusively, that you were doing something explicitly allowed.
Go ahead and try to show that you even skipped a song in your preferred music player, let alone when.
I think a camera with a view of your device and the windshield or dash would probably suffice in most cases.
But, you may be right. Someone else said they were affirmative defenses, like when you are charged with driving without a license the police don't have to prove there was no emergency, but if the defense proves the emergency you are acquitted. Unfortunately while this law is explicit about that example, it fails to say the texting exceptions are affirmative defenses, so I don't know.