On behalf of The Marks Law Firm, L.L.C. posted in Traffic on Friday, May 3, 2013
A recent article in the Los Angeles Times relates the saga of Steven Spriggs, a law-abiding, law-respecting librarian who received a ticket for unlawfully using a cell phone while driving. He was not texting. He was not talking (you can talk and drive if you use a hands-free device). He looked at his phone to check his map app. A police officer saw the lighted cell phone in the dark and pulled him over. No erratic driving, no proof he had used the phone improperly. He lost in court and on appeal, with the judges taking a very strict liability approach to the law – if not hands free, you can be ticketed.
We understand the basis for limiting the use of a cell phone while driving, but the line drawing makes no sense. For example, texting is absolutely prohibited, and it should be – the time it takes to look at the phone and text could easily make the difference between avoiding and causing an accident. But glancing at a map app gets you a ticket, while glancing at an actual map (yes, those do still exist) would be fine. So would typing info into your car’s GPS. If the latter two are legal, and take just as much attention away from the road, why should only the former get a ticket? Is that not the kind of arbitrariness due process forbids?
The laws targeting cell phone use also do not make sense in terms of scientific research. Most recent studies indicate that the distraction from talking hands-free is no different than the distraction from talking with the phone against your ear. And what about all the other types of distractions we do not make illegal – air drumming or poorly singing to loudly played music? Eating and drinking while driving? Having a jittery pet in the front seat? It seems if we truly want to target distractions, we should do so fairly across the board.
Unfortunately, common sense and the law do not always meet as we would hope. The applicable state and federal constitutions allow governments to draft laws that would help address a problem partially, rather than totally, as long as it passes the “not arbitrary” test. So, reducing texting while driving while still allowing cell phone talking could be sustained because of the noticeable difference in attention and risk of harm. And we can ignore the music distraction because…well, simply because we have a long history of driving with music without it leading to accidents (which is only partially true). But it seems a harder case when trying to distinguish between a map app and a real map or your car’s GPS, or holding the cell phone to talk and hands free talk.
Given the revenue these laws generate in fines, they will likely not go away voluntarily. In California alone, these laws resulted in over $70 million in fines last year alone. Given the attachment the states have to these laws, more and more challenges to their constitutionality will be raised in the future.
We of course do not advocate ignoring the real dangers of driving while distracted; we simply are pointing out that crafting a law that comports with basic due process can be more challenging than many legislators believe.
In Missouri, we have been late to join the ban on cell phone use, but we imagine these issues will come home to roost soon.
If you have questions about cell phone related offenses, contact us – we can help.