Dow cleared of cellphone violation charge

City Councilman Rick Dow listens to testimony duirng Tuesday's trail. At right, Lindsay Lorang, Dow's attorney.

Havre City Council member Rick Dow was cleared of a traffic ticket Tuesday by a jury of his peers.

Dow spent the day in a jury trial he requested over a citation that he used an electronic communication device while driving, which came from a traffic stop on May 1.

The long-time vocal opponent of the cellphone ban was in high spirits following the verdict.

"I'm very pleased, " Dow said. "I sincerely believe that liberty won today. "

He then had his response summed up in a printed-off photo and quote from Ayn Rand:

"There's no way to rule innocent men. The only power government has is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. "

Havre Police Officer Matt Sayler, who wrote Dow the ticket and was the only witness called in the case, said he saw Dow with his hands over the wheel holding something resembling a cellphone and moving his hands in a way that looked like he was texting.

Dow, who did not speak during the trial, insisted after the trial that he was merely handling one of his children's toy phones. After his arraignment, but before his lawyer told him to not talk about the case, Dow said he had simply grabbed a phone that was sliding around his dashboard that he did not use. After the trial he further clarified that the phone was one of several non-working phones that he lets his kids play with, and that what Sayler saw was Dow himself having a pretend conversation on the play phone.

City Prosecutor Tammi Barkus argued that, according the wording of the ordinance, Dow did not have to be using the phone Sayler said he saw. A repeated phrase, from the ordinance and Barkus' arguments, was "immediate physical possession, " meaning it is illegal to just hold a communication device while driving.

"The city doesn't have to prove that he was using the phone, just that it was in his immediate physical possession, " Barkus said in her closing arguments. "What he was doing with it is irrelevant, but it was in his hand. (Patrolman Sayler) saw what he saw because the defendant did what he did. "

Dow attorney Lindsay Lorang told the jurors that what one officer thinks he saw is not enough to find Dow guilty.

"I saw what I saw therefore I didn't have to do anything else is not sufficient evidence for a court of law, " Lorang said in her closing arguments.

She said Sayler should have asked any follow up questions — about whether Dow had a phone, whether Sayler could see it — if he felt there was something wrong.

Sayler said during the trial that he thought it would have been intrusive and an invasion of Dow's privacy to go through the process of impounding the car, forcing Dow and his children to walk home, getting a warrant to look for the phone and subpoenaing the phone company for records to find if Dow had been texting.

Dow still insists he has never sent a text in his life.

After a short deliberation the jury found Dow not guilty.

"I guess you can fight City Hall, " councilman Dow said.