LOUISVILLE, Ky. (WDRB) -- Kentucky's texting and driving law snared more people last year than in the previous three years combined.

But, at the same time, prosecutors are having an increasingly difficult time convicting people on that charge.

The number of people cited has risen nearly 500 percent since the law was enacted in 2011, doubling just in the last year, yet the conviction rate is lower than it has ever been.

“It's tough for law enforcement to enforce because of all the loopholes,” said Bill Bell, executive director of the Kentucky Office of Highway Safety. Bell noted that the law applies to sending and receiving text messages but doesn't address drivers using their phones to browse the Internet, update social media or get directions.

“People can say, ‘I was just making a call. I was just checking GPS. I was looking for a phone number,'” Bell said of possible excuses.  “Unless you subpoena every phone company for these records, and there's no law enforcement agency that has time to do that,” it's hard to prove.

The result has been a largely
toothless law under which drivers and their attorneys have seemingly figured out that, notwithstanding a confession or guilty plea, a conviction is a difficult task.

The statewide conviction rate from 2011 to 2013 was 63 percent, on average, but dropped to 48 percent in 2014, according to the state Administrative Office of the Courts. About 38 percent of cases were dismissed -- by far the highest during the law's four years.

“Maybe we need to start over,” said Susan Ely, director of the criminal division of the Jefferson County Attorney's Office, where about half of the cases ended in dismissal last year.

State Rep. Tom Burch has suggested just that, introducing legislation in this year's Kentucky General Assembly that bars the use of hand-held cell phones while driving.

House Bill 66 would limit phone use to hands-free only, meaning “you wouldn't be able to touch your phone,” unless there was an emergency, Burch said.

“You can't drive and talk on the phone at the same time and think you're driving responsibly,” he said.

The Jefferson County Attorney's office and the Louisville Metro Police Department, among others, support the proposal calling for hands-free devices.

“The roads would be safer if this bill was passed and it would be easier for our office to successfully prosecute these types of cases,” Ely said. “Is it any less distracting that you are flipping through your contacts to call a phone number than texting? You're still looking down and not concentrating on the road.”

Ely said the office would also like to see stiffer penalties – currently the citation carries a $25 fine for a first offense.

Right now 14 states bar drivers from using hand-held cell phones while driving.

Burch has pushed his bill before, but with little to show for it.

“You can't get a motion to move it out of committee,” he said. “Most legislators want to talk on the phone while they are driving.”

Rep. Hubert Collins, a Wittensville Democrat and
chairman of the transportation committee, said he personally would be in favor of not allowing cell phone use in a moving vehicle at all.

But asked if he would let Burch's bill get a hearing, Collins said, “That's a question I'm not going to answer right now. I want to sit down and look at it.”

Speaker of the House Greg Stumbo said in an e-mail that he was “hesitant” about the hands-free bill, believing it is "more of a requirement than is necessary." 

Stumbo said he is “not aware of an uptick in accidents due to distracted driving caused by texting, so (the current law) has to be having some positive benefit.”

The number of distracted driving crashes has fallen slightly since penalties set by the texting law began in 2011, from 54,066 wrecks in 2010 to 53,344 last year. Distracted driving deaths have also dropped during that period, from 175 to 167.

Law enforcement agencies across the state say a hands-free law would save even more lives.

“I think when it began (the current texting law), it was a good start,” said Louisville Metro Police traffic unit commander Lt. Joe Seelye. “It gave us something.”

But he said it is very “challenging to work within the parameters” of the law, given the difficulty police have in proving someone was texting. 

(It is and would remain legal for people to text at stop signs and traffic lights. Also police would be allowed to text while driving.)

Prosecutors in Louisville have not yet subpoenaed phone records to prove whether a person was texting while driving, Ely said. However, she said, some suspects and defense attorneys have voluntarily provided their cell phones or records to prove they had not been texting.

“If we think the defense is valid, we will dismiss the case,” she said.

Local police and prosecutors have been working closer together in recent weeks to strengthen the cases.

Rather than just dismiss a case if a defendant or their attorney pleads not guilty, prosecutors are now setting the case for another hearing where the citing officer is called in to testify, Ely said.

“Let's find out if there is additional information not in the citation, and there always is,” she said. “Just don't take the defendant's word if they don't have records. Try to be more proactive.”

Seelye said officers are working harder to get confessions from drivers, asking them what they were doing on their phone, and putting more documentation in citations on what they witnessed.

Some areas of the state, through the use of grant money, have been more successful than others proving these cases by using one officer at a lookout point or in the passenger seat as a “spotter” while another drives.

“You need that other officer to watch and make sure they are not making a phone call … to watch for the extra key strokes,” Bell said.  “If it's more than 10 key strokes, you pull them over and cite them.”

In 2013, Paducah police took part in a pilot project that allowed them to use spotters. During the time, they had a conviction rate around 87 percent, Bell said.

Assistant McCracken County Attorney Todd Jones said officers not only try to prove they have witnessed texting but also try to get a confession. If they continue to fight the charge, by saying they were acting in some other distracted way, Jones will offer to amend the case to careless driving, which carries a larger fine.

“So people have the option here of picking their poison,” he said.

Even still, Jones acknowledges that he has not subpoenaed phone records and the charge remains difficult to prove if someone wants to fight it – a result he blames on the current texting law.

“It wasn't written very well.”

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