This past week, the internet was all a-twitter with the story of a gentleman who was ticketed in Cobb County for eating a hamburger while driving. My reaction to this story was much like everyone else’s, which was, “What the……?”
So I looked it up. There were copies of the citation posted online, and the man was in fact cited for failing to exercise “due care”, a violation of O.C.G.A. 40-6-241, and the notes did say only, “eating while driving.”
O.C.G.A. 40-6-241 is a fairly short law, so I will quote it in its entirety. It says, “Duty to avoid distractions; exceptions. 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.” In other words, it says, “When you’re driving, you can’t do anything that will distract you, but using a radio, a cell phone, a CB, or other two-way communication device doesn’t count.”
I don’t know about you, but the most distracting thing I do while driving is listen to my kids bicker in the back seat of the car. Does this mean that according to Georgia law I can’t allow my children in the car with me? I don’t know, and I think if this law were ever challenged on Constitutional grounds it would fail. I believe this law is what you would say in legalese is “void for vagueness.”
Due process requires “that an individual be informed as to what actions a governmental authority prohibits with such clarity that he is not forced to speculate at the meaning of the law.” Armstrong v. Mayor &c of the City of Savannah, 250 Ga. 121, 123 (1982). This means that for a law to be valid, it has to tell you what you can and can’t do without your having to guess at what it means.
Put another way, in order for this law to withstand a vagueness claim, the law would require that “one of ordinary intelligence is given fair notice of what is prohibited and arbitrary and erratic arrests and convictions are not encouraged.” Hubbard v. State, 256 Ga. 637 (1987). Eating while driving is a common activity, and is encouraged by the way ready to eat food is sold. Going through a drive through is perfectly legal. Food is sold in convenience and grocery stores in packaging that is specifically designed to fit in the cup holders in the car. For that matter, I think it is fair to say that you’d be hard pressed to find a car these days that didn’t have a built in cup holder. (Nostalgic aside: does anyone remember those flimsy plastic jobs that you would hang on the side of the door by sticking the bent over part between the door and the window that more often than not resulted in Coke or lukewarm coffee all over your pants?)
I’m not even going to get in to the ‘what about drinking’ question, which is its own little legalistic can of worms. What is the difference in terms of distraction between eating and drinking? What defines drinking? Do you drink soup or eat it? What about a Wendy’s Frosty™? Frankly, I know I drive better in the early morning hours when I have a cup o’ caffeine by my right hand.
In any event, I would think that “one of ordinary intelligence” would think that eating (or drinking) in one’s car is a generally accepted practice, and not a violation of any law. Which makes this particular law applied in this particular situation void for vagueness.
I could speculate forever about why the officer chose to ticket this man, but that is entirely besides the point I am trying to make. Whatever the officer’s motivations, whether to harass this man or to protect other citizens from someone who couldn’t see over his Big Mac wrapper and was weaving all over the road, I don’t believe this law would withstand scrutiny from the courts.
This article was written by a lawyer, but should not be considered legal advice in any way, shape, or form. It is written for general (and generally vague) informational purposes only. In order to properly evaluate your case, a lawyer must examine all the facts and circumstances that are particular and personal to your situation. I have not done that here