Wednesday, February 3, 2010

Why There Should Be No Ban On Texting-and-driving

That video is gut wrenching. Were you even able to watch its entirety? The part that hurts me the most is seeing the little girl asking "Why won't Mommy and Daddy wake up?" and the little infant with an empty stare while emergency personnel frantically check for a pulse because I see in them my two nieces, ages 8 months and 6 years, who lost their mother when my sister Rachel passed away suddenly 8 months ago.

The accident depicted was caused by a teenaged girl texting while driving. So how could I possibly still oppose a legal restriction against texting while driving? There are many reasons, but let me discuss three of them:
1. Such a ban can not be well enforced.
2. "Texting" isn't the cause of accidents.
3. I have a better idea to handle the issue.

For the sake of discussion, let us consider HB 1279 which passed in the Indiana House yesterday (02 FEB 10). You should click that link to get more details on the specifics and definitions, but this is the main part of the bill:

A person may not use a telecommunications device to transmit a text message or electronic mail message while operating a moving motor vehicle unless the device is used in conjunction with hands free or voice operated technology.

1. Non-Enforceability
Law enforcement officers (LEOs) have no legal way of determining if you are texting.

In Indiana, using your wireless phone to make phone calls while driving is not illegal. In fact, Indiana does not even have a hands-free law regarding placing calls. Neither is there any restriction on using the GPS, music player, camera, or even game features that most modern phones include. These facts demonstrate that there are legal reasons to be looking at your phone and pressing buttons (or touching the screen) while driving.

So, a LEO may visually observe you pushing buttons on your phone while driving, but this is not sufficient to pull you over under the proposed law. This is different from Indiana's "Seat Belt Law" which specifically allows LEOs to stop a driver under Indiana Code 9-19-10-3.1.

Suppose that you have already been pulled over. A LEO may very well want to find out if you were in violation of the "Texting While Driving Law", but he cannot. If the officer asks you if you were texting, the Constitution of the United States protects you from answering. If the officer asks (or even "orders") you to produce your phone for inspection, the same Constitution protects you from unreasonable search and seizure without 1) a warrant or 2) probable cause.

There are two very important things to remember. The first is that under United States law, the exercise of your Fifth Amendment right is not an admission of guilt and cannot be used as such. The second is that, since there are legal reasons to be pushing buttons (or touching the screen) of a phone, the fact that you were doing so does not provide probable cause for a search or seizure of your phone, and neither does refusing to tell the LEO if you were texting develop probable cause.

So, without probable cause or a warrant to search your wireless phone (or a subpoena for your phone records), there is no legal way for an officer of the law to determine if a driver was to be in violation of the "Texting While Driving Law". I must note that this does not apply to drivers foolish enough to waive their 4th and 5th Amendment protections by either admitting guilt or producing the evidence of guilt without a warrant.

June 2012 Update: Indiana passed a law banning texting while driving. Now, after several years, hardly any tickets have been written because… cops say they can't enforce it. "Police struggle to enforce texting law" - WISH-TV.

2. The Real Cause of Accidents
The real cause of accidents is not texting or even using a wireless phone; it is driver negligence.

The results are in. They can be read all over the internet, and they are seen and heard on the news. But many people have misinterpreted those results.

The following sources produce statistics and quotes you've probably heard before.
1. Cell Phones and Driving: Research Update. December 2008. AAA Foundation for Traffic Safety.
2. Highway Officials: National Ban On Texting While Driving. (Car Accident Lawyers)
3. Teen Driver Menace: Text-Messaging: Studies Show Texting While Driving Is Epidemic.
4. Teens Admit Text Messaging Most Distracting While Driving. Students Against Destructive Decisions.

The overriding theme is that there are many things which distract drivers from the road, and that one of the most common distractions these days is the use of a cell phone, especially for sending and receiving text messages. (Side note: HB1279 would only ban sending messages, not receiving and/or reading them, while driving.) So, you see, texting isn't really the cause; instead, the main cause is that drivers are paying more attention to something other than driving. Let's brainstorm a moment here.

Possible distractions to drivers:
• Reaching for a moving object inside the vehicle.
• Looking at an object or event outside of the vehicle.
• Reading a book or newspaper.
• Applying makeup.
• Doing or fixing hair.
• Eating.
• Taking a drink (assume non-alcoholic).
• Talking to passengers.
• Dealing with your kids in the back seat (lost toy, fighting, spill, potty accident, sick, etc.)
• Changing a CD, tape, radio station, song, or volume.
• Just listening to music, even if you don't change or adjust anything about it.
• Sexual activity (let's not be na├»ve, it happens).

And, of course, some other things that can adversely affect a driver's ability to safely operate a motorized vehicle:
• Emotions and state of mind.
• Cough syrup.
• Lack of sleep.
• Body aches and injuries.
• Drunkenness.
• Gender. (OK, just kidding on that one;)

The evidence in all studies to date has demonstrated that a driver whose attention is not focused on driving puts himself at a MUCH higher risk of being in a collision. (Note that I do not call it an "accident". One thing I learned in Driver's Ed is that there are very few accidents; it is almost always somebody's fault.) Whether that driver's attention is diverted by a phone, an iPod, CD player, GPS, or passengers is really irrelevant. No matter what causes that distraction, it is the responsibility of the driver to make sure that his vehicle does not hit anything. Thus, you see that most accidents result from driver negligence—neglecting to fulfill his responsibility to keep his vehicle from hitting something.

3. A Better Approach
Regulating distractions doesn't work. Regulating driving will.

Consider the findings of the attorneys at (source 2, above).
The percentage of car accidents attributed to dialing a cell phone is nearly identical to the number associated with talking or listening on a cell phone or bluetooth headset.

Again, the results are in. When cellular phones were just beginning to gain popularity, it became evident they were becoming a distraction to drivers. Many states enacted legislation requiring drivers to use "hands-free" devices if they wanted to use a cell phone while driving. But that did not help. Even Arizona Democratic State Rep. Steve Farley, who was the first legislator in the country to introduce a bill that would ban texting while driving, has noted that "hands-free" legislation has not proven successful.

What are legislators to do? Should they doggedly continue down the list of possible distractions and attempt to regulate each one, hoping that success will be found once they've all been banned? No, certainly not. This would be a waste of tax-payer money, since they'd be wasting time, on our dime, writing laws that are too difficult to enforce, infringe on our rights, and, most importantly, have little positive effect in solving the actual problem!

Listen, folks, I don't know if I've made it clear yet, but I'm not saying people should text whenever they want. And I don't believe that people should drive when they are drunk or high.

I've never been drunk, and thus never driven while drunk, but I've driven while I was way more sleepy than was safe. Studies have shown that driving while sleep-deprived can be as dangerous as, or more than, driving drunk. So why is driving tired not illegal too? Well the easy answer is that it cannot be easily measured such as your BAC can be measured, even though some people are not drunk at .08 while others are drunk well before then.

The laws are tackling the issue the wrong way. We should come up with a better way to handle this.

Let us create a "Distracted Driving Law" that is based on your driving, not what you're doing. Distracted driving tickets could be issued for, among other things:
• Not going at a green light.
• Swerving (which is already a reason to suspect drunk driving).
• Merging into somebody.
In fact, there are already several things in the Indiana Code that are classified as "reckless driving". Let's add to that.

Behavior that is generally indicative of being an impaired driver should be banned rather than each and every single little thing which could possibly contribute to impaired driving. In Indiana, one of the drivers in a collision is assigned fault (which is as it should be, in contrast with Michigan's no-fault policies). An appropriate piece of legislation may impose penalties for being the at-fault driver beyond the current status quo of simply being financially responsible for any damage caused to person or property.

We could do away with the current drunk driving laws, this proposed "Texting While Driving Law", and a flurry of other similar laws, both current and future. It doesn't matter what the heck you are doing in your car if you are able to maintain proper control of its velocity, path, and destination, i.e., speed, direction, where it goes, and where it ends up. But so help you, if you screw up, you're in deep poo-poo.

Legislating the driving itself also allows the law to be flexible to people of various skill levels. Can you barely chew gum and drive in a straight line? Better not chew and drive. Are you a big, burly, bartender who knows he can have four beers in an hour without even getting a buzz? Fine, if you can keep the car on the road and not hit anything; THAT is what is important, not your BAC nor bottle count.

And need I mention that this doesn't infringe on your personal rights? No illegal searches. No need to pull somebody over and give them a hard time on suspicion alone. The LEO can clearly observe if the vehicle is being operated in a reckless manner. This is much more easy to enforce.

Finally, this approach lets us stop writing laws about it! Thirty years ago there were no laws about texting and driving, or even using a phone while driving, because they weren't relevant. But suppose that laws had been written as I have suggested. In that case, the old law would still be relevant today because it was focused on the way a driver operates the motor vehicle on the roadway rather than what the particular distraction of his generation is.

Come on, folks. Don't let your legislature enact another "feel good" law with demonstrably little effect on stemming the real problem. Instead, let us encourage them to use some common sense and write a better law.

Click here to email your Indiana legislators. Tell them you oppose this bill, and all others like it, not because you think texting and driving is safe, but because it is a foolhardy approach to establishing roadway safety.

Further Reading
A Penchant for Controlling Others - Llewellyn H. Rockwell Jr. - Mises Institute
~ Angry White Boy ~ » Indiana House Bill 1279 – Nanny State Legislation
Do Not Make New Laws – Enforce the Ones We Have (Texas)


Bill Starr said...

Excellent post, Caleb. Very well put. I'll probably send a link to the four state legislators who serve my county.

Stephanie said...

Good Job Caleb. This was very well written(I enjoyed the occasional sarcasm and humor). You have opened my eyes to a new perspective and approach- thank you for that. I completely agree with your post!

Terry Lynch said...

You have written a well thought out post.

There are, however, two problems with your solution.

One, it just makes too much sense. I can't imagine the term limited rookies in the Michigan legislature doing something so simple that also works.

And second, my personal opinion is that your solution puts too much power in the observations a single police officer. The result would be a steady stream of he said, I said court cases based on nothing more than the word of the police versus the public, with no actual evidence produced.

The only way it would work would be a possible stipulation of a minimum of dash cam video to back up the officer. I think with out some backup evidence we would be setting a very dangerous precedent.

Caleb said...


Thanks for your comment.

It's true that many legislators aren't "smart" enough to pass the kind of laws we actually need. It is really up to us, the People, to make sure that we get the message across to our representatives about what kind of laws we want, don't want, and—more importantly—need and don't need. If they don't listen to our letters and phone calls, they'll have to listen at the ballot box.

I do question your remark about "too much power", though. I think that my proposition reduces those very kinds of situations; it replaces "Your Honor, he was texting." "No I wasn't!" with something that, as you say, could potentially be backed up with dashcam video. Even without video, the word of the police officer would be treated just as it presently is for speeding tickets, red light and stop sign infractions, or failures to use a turn signal. Sure, the driver can always contest the citation, just like now, but probably with limited success.

Again, my approach is to legislate the clearly observable driving behavior, not the more private and less-visible driver behavior.

Shrey said...

Wow's just quite astonishing really! I admire the way you outline your thoughts; you really opened up my mind on the topic and whereas there are some loopholes (as there always is) it is very truly stated. What matters most is the driver is aware and competent and you stated that better than anyone else I know.

Mim said...

We have a distracted driving law in Alberta. Might want to look into that to see how it works? It deals with putting make up on, eating a hamburger with two hands, using a handheld device of any kind, etc...