A legal look into the hands-free law: What can you do if you're ticketed? Attorney weighs in

Posted at 12:23 PM, Jan 10, 2021

NORFOLK, Va. - Holding your phone while driving can land you a ticket and a fine as of January 1 in Virginia. It's a violation that Virginia Beach-based attorney Happy O’Brien said can be hard to fight.

"There's not a whole lot you can do,” O’Brien said.

O'Brien is a partner with the law firm Doummar and O’Brien. He added the reason it would be difficult is it “is really simple for the police to charge you and to successfully prosecute you. They just have to see the phone in your hands."

He added with the previous law, the driver had to admit they were on their phone while driving. That could make it hard for the legal system to prosecute the driver, O'Brien said.

The fine is $125 for the first offense and $250 for each offense thereafter.

"I think the $125 will certainly serve as a deterrent for people,” O’Brien said. “There's no wiggle room, the judge has no discretion."

You can, however, use your phone during an emergency. If you are caught and ticketed, O’Brien suggested that reaching out to your cell phone carrier may be the first step to prove an emergency.

"[Your cell phone carrier may] be able to coordinate what's on the record with what time you were stopped by the officer to show you were on the phone with 911,” O’Brien explained. “That could show you were on the phone with your wife telling you she was pregnant and that you needed to come home."

The law does allow you to use hands-free devices.

"Get yourself one of those vent or cup holder cell phone holders,” O’Brien advised. “Get your playlist logged on, get your GPS location logged on before you take off and drive down the street."

News 3 reached out to several local police departments to see if they have issued tickets. The Suffolk Police Department said it has issued two tickets so far. As for other local departments, including the local division of the Virginia State Police, they replied saying that information should be available sometime later this week.