Nearly 7,500 distracted driving citations were dismissed last year in Atlanta Municipal Court. Judge Gary Jackson said nearly all of those cases were dropped under a provision that allows first offenders to bring a receipt for a hands-free device to court to have their citation dismissed. Bob Andres / robert.andres@ajc.com

Georgia may scrap ‘get out of jail free card’ for distracted driving

Tucked into Georgia’s distracted driving law is a provision that has allowed thousands of offenders to avoid paying fines.

Motorists cited for handling their cellphones while driving can bring a receipt for a hands-free device to court, and a judge must dismiss the citation. The idea is to encourage drivers to buy dash mounts or other technology that allows them to comply with the Hands-Free Georgia Act, which prohibits motorists from handling their cellphones or other electronic devices while driving.

State lawmakers call the provision the “get out of jail free card.” And though it’s hard to determine how much it’s used, prosecutors and judges say it’s common in their courts. Now the General Assembly may eliminate the provision as it debates whether to raise fines for distracted driving.

Critics say the provision has outlived its usefulness because motorists have had nearly two years to get used to the hands-free law. They also say it’s easy to abuse — it’s for first offenders only, but most courts don’t track its use outside their own jurisdiction. That means a driver could use the provision to wiggle out of fines in multiple cases in different cities.

“It’s not that the provision itself is such a bad idea,” Cherokee County Solicitor General Todd Hayes said. “There’s just no way to make sure that loophole is not there.”

Defense attorneys say abuse of the provision is unlikely. And they say there’s still a public benefit to encouraging offenders to buy hands-free technology.

“You get that one free pass,” said Atlanta attorney Kevin Fisher, who handles traffic cases. “But the next time, there’s going to be serious consequences. How can that not be helpful?”

The “get out of jail free card” was one of the compromises that cleared the way for the passage of Georgia’s hands-free law in 2018.

The idea is to curb distracted driving, which safety experts say contributed to a spike in traffic fatalities in Georgia and across the nation in recent years. By forcing drivers to put down their phones, the law is supposed to get their attention back on the road.

There is some evidence the law is having its intended effect — Georgia traffic fatalities fell 2.2% to 1,515 in 2018, and preliminary data shows fatalities fell again last year. But plenty of people are still driving with their phones in hand. That’s prompted the General Assembly to consider tougher measures.

One possibility: higher fines. House Bill 113, as originally proposed, would have doubled the fines for distracted driving. A first offense would have gone from $50 to $100, a second from $100 to $200 and a third from $150 to $300.

Critics of that approach say higher fines won’t improve compliance with the law but could be hard on low-income offenders. A House committee recently amended the bill to make the fine $25 to $100 for every offense, at a judge’s discretion.

But lawmakers on both sides of the fine debate say the “get out of jail free card” needs to go.

It’s unclear how often the provision has been used across Georgia because courts have difficulty tracking it. When an offender brings a receipt or a hands-free device to court, he or she is found “not guilty” of the offense. Courts generally don’t track offenses where the defendant is not guilty.

But some judges, prosecutors and defense attorneys say use of the provision is widespread. Last year nearly 7,500 citations for the hands-free law were dismissed in Atlanta Municipal Court. Nearly all of those were dismissed because defendants brought a receipt or hands-free device to court, Judge Gary Jackson said.

If the defendant doesn’t have a receipt, Jackson said he’ll accept a hands-free device or even a picture of one as evidence the defendant has bought a dash mount or other hands-free device.

“They leave with a big smile on their face,” the judge said.

Other jurisdictions said they could not easily determine how often the provision had been used.

The law requires offenders who use the provision to state in writing that they have not used it in the past. But if a defendant lies, courts would have a hard time proving it. Though some courts track use of the provision in their own jurisdiction, it’s hard to track it elsewhere.

“One person driving on a Sunday afternoon through six cities and unincorporated Cobb County could get seven tickets, and none of us would know that,” county Solicitor General Barry Morgan recently told a House committee.

Of course, getting caught lying to a judge would potentially have more severe consequences than a $50 fine. The penalty for perjury in Georgia is a fine of up to $1,000 and one to 10 years in prison.

“I would hope that most people are truthful when asked by a prosecutor if this is their first offense,” said Fisher, the defense attorney. “I think it would be wise to be honest.”

Fisher said the “get out of jail free card” encourages motorists to comply with the hands-free law. It certainly encouraged Michael Friedman of Dunwoody. He was cited under the law in July.

Friedman had a dash mount for his phone. But he was late for a meeting, so he picked up the phone to use a GPS app to see how long his trip would take. A police officer nabbed him.

Friedman bought another dash mount and brought the receipt to court in October. The judge dismissed his citation. Since then, he said he’s been more careful to abide by the law.

Friedman hopes lawmakers don’t eliminate the “get out of jail free card.” He thinks courts should find a way to track the use of the provision instead.

“The law is the law,” he said. “But I think they need to make it reasonable as well.”

HB 113 is pending in the House Rules Committee.

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