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MERCER: Texting ban is a lawsuit waiting for day in court

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opinion Mitchell,South Dakota 57301
The Daily Republic
MERCER: Texting ban is a lawsuit waiting for day in court
Mitchell South Dakota 120 South Lawler 57301

PIERRE -- The Legislature's decision to prohibit texting while driving didn't answer what happens for the eight cities and one county that already have bans in place.


Assuming the governor approves the ban, most of South Dakota will have a clear law to follow:

• Texting while driving will be illegal under most circumstances;

• The fine will be $100; and law enforcement can't write a ticket for texting unless the motorist was stopped for some other reason.

But uncertainty awaits motorists in Aberdeen, Mitchell, Watertown, Box Elder, Huron, Vermillion, Brookings, Sioux Falls and Pennington County.

Their local governments grew tired of waiting. They adopted local texting bans in the past two years. The problem now is those city and county ordinances, depending on their exact wording, don't match the state ban.

Legislators knew this mismatch was out there. But they chose to overlook it Thursday when they voted to overwhelmingly approve the state ban.

They followed the advice of Sen. Mike Vehle, R-Mitchell, who urged them to not get lost chasing "bunny trails."

No one can say they weren't warned.

House Speaker Brian Gosch, R-Rapid City, wanted to expressly prohibit local authorities from enacting, enforcing or expanding any measure that is contrary or varies from state laws regarding rules of the road.

Most of that is already in state law. Gosch wanted it clarified.

When negotiations on the ban broke down Tuesday, Vehle's supporters felt they had still won because local bans still stood.

Gosch didn't see it like that. He spoke privately with some legislators to arrange for negotiations to resume and to get new people as negotiators. On Wednesday afternoon, he made the motion in the House calling for a new conference committee.

He did something else. He privately told negotiators to remove his section specifically overriding the local ordinances.

He believes they already are illegal under existing state law.

"It was only there," he said about the section he let be taken out, "to bring awareness to that statute."

Gosch is a 1996 graduate of the University of South Dakota law school. While a student he learned about a 1993 state Supreme Court case on a local traffic ordinance that didn't match state law.

In the State v. Eidahl decision, the Supreme Court upheld a circuit judge's decision to dismiss a drunk-driving arrest.

A Huron police officer had followed a woman who didn't use her turn signal on her final two turns.

The city ordinance required signals for all turns. State law required signals when another vehicle was present.

There wasn't proof of another vehicle in sight.

"This case presents an example of the precise conflict in existence," the justices wrote.

The driver's lawyer, Doug Fosheim, had just finished six years in the House. His father, Jon Fosheim, was a former chief justice of the Supreme Court.

Regarding the new texting ban, Gosch's opinion is local bans will be enforced, until someone fights a ticket in court.

When that happens, he expects local ordinances will be overruled.

What about cities with home rule such as Aberdeen, Watertown, Brookings and Sioux Falls? "I'll let the courts figure that out," Gosch said.