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Failure to Use Due Care


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#1 ktrem2

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Posted 22 April 2011 - 12:45 AM

I was ticketed for Failure to Excercise Due Care (violation of code section 40-6-241) and Failure to Obey Traffic Control Devices (violation of code section 40-6-20) in Dekalb county, Georgia. 


The red light ticket I will pay without question; the officer said I failed to stop for the red light.  I honestly did not even see a traffic signal, it was the first time I have ever been on that road and I am completely unfamiliar with the area.  My issue is with the Failure to Use Due Care.  The officer stated he issued that citation because I was on my cell phone.  It is my understanding that it is not illegal to use your cell phone while driving in the state of Georgia so how can I get ticketed for it?


I was only on my cell phone because I am unfamiliar with the area; I transport foster children to and from visits with their parents and I was speaking with a foster parent in order to get easy directions to her home to return the children.


Do I stand any chance of getting the Failure to Use Due Care citation thrown out if I plead not guilty?  I am also concerned that it says I could face fines of up to $1,000 and up to 120 days in jail if I plead not guilty and am found guilty.  Am I better off to pay the $178 in fines and take the points or risk a not guilty plea?


If someone could explain the legalities of issuing a ticket for a non-illegal offense (talking on a cell phone while driving) I would appreciate it. As a note I am not under 18 and I have a Class C license in Georgia.



#2 FindLaw_John

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Posted 22 April 2011 - 04:22 AM

ktrem2 said...

The officer stated he issued that citation because I was on my cell phone.  It is my understanding that it is not illegal to use your cell phone while driving in the state of Georgia so how can I get ticketed for it?


Georgia Code 40-6-241 (Failure to Exercise Due Care) states the following:

"ยง 40-6-241.  Driver to exercise due care; proper use of radios and mobile telephones allowed

A driver shall exercise due care in operating a motor vehicle on the highways of this state and shall not engage in any actions which shall distract such driver from the safe operation of such vehicle, provided that, except as prohibited by Code Sections 40-6-241.1 and 40-6-241.2, the proper use of a radio, citizens band radio, mobile telephone, or amateur or ham radio shall not be a violation of this Code section."

I suppose it's possible to be cited under this statute if the officer determined that you weren't exercising due care in the operation of your vehicle. However, the statute also makes it clear that proper use of a cell phone is permitted. The other code sections referenced deal with Class D licenses, permits and minors (inapplicable to you) and text/email/data while driving. Were you by chance text messaging at the time or leading up to being pulled over?

ktrem2 said...

Do I stand any chance of getting the Failure to Use Due Care citation thrown out if I plead not guilty?  I am also concerned that it says I could face fines of up to $1,000 and up to 120 days in jail if I plead not guilty and am found guilty.  Am I better off to pay the $178 in fines and take the points or risk a not guilty plea?

No one here can predict the outcome or give you odds. The penalties listed are likely maximums - entirely possible but unlikely.

Rather than limit yourself to the option of paying the fine or pleading not guilty without knowledge, you might want to speak with a local Traffic Ticket Attorney first. Many Traffic Ticket attorneys deal in these matters for low, flat fees, and you can even take advantage of the free consultations that many in Georgia (listed in the FindLaw Lawyer Directory) offer. He or she should know Georgia's traffic court rather well and at least be able to guide you appropriately if not handle the matter entirely.  Best of luck.



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#3 flap03

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Posted 22 April 2011 - 09:13 AM

In responce to ktrem2, nobody wants to see distracted drivers ,However there is a clause in the constitution  guaranteeing the freedom of speech ,furthermore  it seems  your communications were in  the line of your employment & or social services,



#4 Fallen

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Posted 22 April 2011 - 09:37 AM

"It is my understanding that it is not illegal to use your cell phone while driving in the state of Georgia so how can I get ticketed for it?"

You WERE ticketed for it.  Just because it's not against the law to use your cell phone doesn't mean the officer can't decide that the relevant traffic reg wasn't broken.  You could have been clipping your toenails, and that's not against the law either.  Sounds to me like you were distracted, ergo "failure to use due care" (it's not a matter of the officer only having a choice to ticket you for one thing/running a red light).


"Do I stand any chance of getting the Failure to Use Due Care citation thrown out if I plead not guilty?"

ANY chance?  Sure (kind of impossible to say you have NO chance, since we know nothing about the judge, etc.).

"I am also concerned that it says I could face fines of up to $1,000 and up to 120 days in jail if I plead not guilty and am found guilty."

If there is a criminal charge associated with this and you have the option to pay a $178 fine and have points assessed against you and let that be the end of it (other than perhaps your insurance premiums going up), and you can't decide, you're free to ask the advice of local traffic law attorney.  (That said, given you didn't cause an accident (evidently), the chance that a judge would jail you is unfathomable.)


 


I'll echo PG's advisory "warning" with a twist: (Many) legal issues are complicated. Explanations and comments here might not fully identify or explain the ramifications of your particular problem. I do not give legal advice as such (and such is impermissible here at any rate). Comments are based on personal knowledge and experience and legal info gleaned over a quarter century, and every state has differing laws on and avenues to address most topics.  If you need legal advice, you need to consult (and pay) a professional so that you may have someone to hold accountable.  Acting on personal and informational advice from a stranger on the internet is a bad idea -- at least not without your own thorough due dilience/research and confirmation as it applies to your situation.  :)





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