LIBERTY VERSUS TYRANNY: More States Pass Laws Outlawing Cell Phone Use While Driving

02.02.2017


By: Gary L. Wickert

Every year, more than 170 billion cell phone texts are sent and received. Each year, an average of 3,000 people die and 450,000 are injured in motor vehicle accidents involving distracted drivers. Ten percent of all drivers who are 15 to 19 years of age involved in fatal crashes were distracted when the accident occurred. The significant safety problem of distracted driving has grown exponentially over the past decade and has reached epidemic proportions.

Precisely which distractions are the deadliest hasn’t been conclusively determined. Without regard to where it may rank on the list of the most distracting and dangerous activities drivers engage in, nobody can argue that operating a cell phone, sending or receiving texts, or manipulating hand-held devices while driving are high on the list. According to the National Highway Transportation Safety Administration (NHTSA), at any given moment across America, approximately 660,000 drivers are using or manipulating cell phones while driving.

At 55 MPH, the average text can require even the most adept young texter to take his or her eyes off the road long enough for a car to travel the length of a football field. State legislatures are scrambling to pass common sense laws governing the use of hand-held electronic devices while driving and protect their residents from themselves. However, there are so many variables involved that the process has been slow. Should it be illegal to send a text, receive a text, glance at an incoming call, refer to a phone GPS, or change songs on a smart phone playlist? For years, drivers have had to juggle driving with tuning the radio, adjusting climate controls, monitoring on board navigation systems, referring to maps, fumbling with windshield wiper controls, and setting and adjusting cruise controls. Some states have passed a single law regarding the hands-free use of cell phones and nothing more, while nearly 20 states still have no laws on the books whatsoever. In 2012, the National Transportation Safety Board (NTSB) chairman, Deborah Herman, called for a first-ever nationwide ban on the use of portable electronic devices, including hands-free cell phones, while driving. Shortly before this, the U.S. Senate considered a Department of Transportation spending bill that set up a $10 million grant program aimed at helping states combat “distracted driving” and texting behind the wheel.

We seemingly live in an age where every wrong results in new laws and new regulations. With each stroke of the pen the liberty of average Americans shrinks ever so gradually. Enacting more laws regarding the use of cell phones may sound like a good solution, but do some laws go too far? Since the invention of the automobile, drivers have been “distracted” by a variety of activities undertaken while driving which do not involve a cell phone, but can still be a deadly distraction, such as eating, using navigation systems, putting on make-up, reading a map, drinking, adjusting a radio, using an iPod, removing curlers, controlling children in the backseat, or picking things up off of the vehicle floorboard. Nonetheless, the driver’s urge to stay “connected” and use the down time associated with driving to take care of business or stay in touch with family can be hard to resist.

There are three main types of distractions while driving:

All three types of distractions can be deadly. Using a cell phone while driving, however, has the unique downside of taking the driver’s attention away from driving more frequently and for longer periods of time than other distractions. As a result, state governments are taking action to keep the innocent safe by passing laws banning texting while driving, or using graduated driver licensing systems for teen drivers to help raise awareness about the dangers of distracted driving and to protect a demographic seemingly unable to survive five minutes without texting or using their smartphones. The problem has become even worse over the last decade as smartphones, which offer resources from weather reports to navigation systems to thousands of apps are now cheaper and standard. E-mails and text messages can now be written, read, and replied to while driving, making smartphones even more tempting than ever to use while driving. Technology has brought the possibility of conducting business while driving that would years ago have had to wait until you arrived at the office. The effectiveness of cell phone and texting laws on distracted driving-related crashes is unclear and is being studied extensively. Some believe that they go too far, sacrificing personal liberty for the sake of safety and security and others feel they don’t go far enough.

Critics of over-reaching cell phone laws say that it makes no sense to legislate the use of hand-held electronic devices but ignore driver behavior including eating fast food, controlling children in the backseat, or applying make-up while driving. They point out that an outright ban on cell phone use in the privacy of one’s own car is a “preemptive regulation”, and such regulations are often misused or overused by state agencies and are currently based on less than reliable information. Such regulations and hastily-passed laws tend to be driven by emotional manipulation rather than sound empirical data. Conflating “distracted drivers” with accidents being caused by cell phone use would be a costly mistake, especially when it addresses a risk that causes at most 2.9% of traffic-related deaths. Laws governing what we do in our cars are also hard to enforce. In an effort to protect the liberty of drivers, states like Louisiana which have passed new laws governing cell phone use have also passed additional legislation prohibiting the stopping and searching of a vehicle for suspected failure to comply with the new cell phone laws. At the very least, it is a slippery slope.

Technology today has advanced to the point where smart phones are used to play music in a car to the exclusion of CD players, radios, and other devices. They often have better GPS systems than the car itself. They have features such as Waze, the world’s largest community based traffic and navigation app. They can also serve as radar detectors. Banning cell phone use completely results in the state telling its citizens that they cannot make use of some of today’s most helpful technologies while traveling. If any use of cell phones while driving is forbidden, should also the use of other portable devices such as iPods – frequently used for a source of travelling music – be banned?

A similar debate raged when state legislatures began passing laws mandating the use of seat belts and other passive restraints (e.g., air bags) in 1985. A 1977 Gallup poll revealed that Americans overwhelmingly (78%) opposed a law calling for a $25 fine for failure to use a seat belt. In 1982, the number was still 75%. State seat belt laws came into being because the federal government tempted automakers into lobbying the state legislatures (something the Department of Transportation (DOT) cannot do by law) to pass seat belt laws in exchange for the federal government not forcing them to install expensive air bags at the time.

There is similar outcry to the efforts of the federal government (DOT) to mandate the use of speed limiters – also known as Electronic Control Modules (ECMs) – on certain trucks travelling U.S. highways. A MWL article on this topic can be found HERE. As recently as August 26, 2016, the National Highway Traffic Safety Administration (NHTSA) and Federal Motor Carrier Safety Administration (FMCSA) announced a proposal establishing safety standards requiring all newly manufactured U.S. trucks, buses, and multipurpose passenger vehicles with a gross vehicle weight rating more than 26,000 pounds to come equipped with speed limiting devices. The justification they gave was saving fuel. Many fleets currently use limiters voluntarily for precisely this reason. This proposed speed-limiter rule is now open for comment on the NHTSA website.

Critics of the new cell phone laws point out that a more personal liberty-friendly approach to the use of government regulations should require a state agency to first prove that the proposed criminalized action is the cause of an undesirable effect and that the banning of the action will significantly help the problem. To date, there have been no studies conclusively parsing the different effects of cell phone usage as opposed to other driver-distracting activities.

History has also taught us that passing a law doesn’t always curtail the undesirable activity. Prohibition comes to mind. However, technology may succeed where legislation fails. New technologies are being developed which make it impossible to text or place a cell phone call while driving. New phone apps, including Apple’s CellControl, disable the ability to text, e-mail, surf the web, play games, Tweet, post to Snapchat and Facebook, take selfies and much more while driving a vehicle. It is likely only a matter of time before class action suits against cell phone manufacturers are filed, claiming that the phones should be made with currently-available technology that prevent them from being used while in motion or while driving.

No matter your thoughts or opinions on the proliferation of state laws governing the use of cell phones while driving, there is no denying that driver cell phone use is, at the very least, a growing source of driver distraction. Lawyers and insurance claims professionals should be familiar with the nuances of cell phone use laws in the states in which they conduct business. State legislatures are scrambling to make their roads safe by passing laws which prohibit dangerous activity yet do not totally infringe on the personal liberty of Americans. It is no easy task. A defendant’s use of a cell phone at or around the time of an accident is easy to determine and can be particularly damaging in a negligence lawsuit wherein the defendant’s actions are being scrutinized. When litigation is involved, the comparative fault of both drivers becomes the main focus. Each state has a system of comparative fault or contributory negligence which requires a judge or jury to allocate 100% of fault for an accident between the plaintiff and defendant. Evidence that a plaintiff was using a cell phone and texting at the exact time the accident occurred can and will be used by a jury to limit the damages awarded or find for the defendant.

If a plaintiff or defendant in an automobile accident lawsuit can be shown to have been using a cell phone or other hand-held devices at or near the time of an accident, and the state in which the accident occurred had a law on the books prohibiting such activity, the action might constitute “negligence per se.” Negligence per se means the violation of a law meant to protect the public, such as a speed limit. Unlike ordinary negligence, a plaintiff alleging negligence per se need not prove that a reasonable person should have acted differently. Instead, the conduct is automatically considered negligent, and the focus of the suit will be over whether it proximately caused damage to the plaintiff. The jury will be instructed that the violation of the statute constituted negligence. Clearly, knowing when and whether a technical violation of a cell phone law has occurred can be critical to the result obtained in adjusting losses, pressing a subrogation claim, or trying a lawsuit. Familiarity with the technical aspect of such laws, and whether they exist in the state in which an accident occurs, has become a necessity of claims handling.

The chart found HERE is a summary of current law across all 50 states governing the use of cell phones, texting, and/or the manipulation of hand-held electronic devices while driving. Every state is different and some states have no legislation whatsoever. Related laws governing the use of headphones or other devices which would impair a driver’s attention or hearing are also included where relevant.

The foregoing was originally published on the Matthiesen, Wickert & Lehrer, SC Blog and is reproduced here with permission of the author. No further republication is permitted without the author’s consent.


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