Tuesday, June 29, 2010

Texting While Driving Ordinance Is A Bad Idea. And You Might Have To Give Up Your Tom-Tom!

Jane Prendergast reports that City Council is poised to enact a ban on "texting while driving" within city limits. The law, being pushed by Chris Bortz, would be a minor misdemeanor for first offenders--carrying a fine of up to $100--and an unclassified misdemeanor for repeat offenders, who could be fined up to $500.

It's a bad idea.

Bortz's motion is available here. Given that the motion points to Columbus's TWD law as a model, the ordinance (which has not yet been written) will probably have the following characteristics:
  • TWD will be a "primary offense." In other words, police can stop a driver on suspicion of TWD without observing any other traffic offense.
  • Dialing a cell phone will not be banned.
  • TWD while at a red light will be banned, but TWD while parked (out of the flow of traffic) will not.
So why is this a bad idea? First, the obvious: how does an officer know whether a driver is texting or dialing? An officer who pulls someone over cannot simply demand a motorist's phone and look through it. Instead, the Ohio Supreme Court has recently held that in order to examine the contents of a cell phone, an officer needs a search warrant. I can't wait to start watching trials in Hamilton County Municipal Court that are all about whether a driver was dialing or texting. That's just what the criminal dockets need: more traffic trials (usually with pro se defendants).

Second, the law is over-broad. My cell phone package includes a GPS program. As I read the Columbus law, even if I punch in my destination address before starting the car, I would be breaking the law if I look at the turn-by-turn directions on the phone while at a traffic light or stop sign. Nothing prohibits me from looking at a separate GPS device, or having an old-fashioned map spread across the steering wheel, or a sheet of paper with directions from Mapquest in my hands as I drive. But I could be fined one hundred bucks for trying not to get lost during a foray into Northside. That doesn't seem fair. It probably also isn't Council's intent; it is, however, prohibited by the proposed ordinance.

I originally suggested that a GPS device was OK. But re-reading the Columbus law, which bans looking at "internet-based content" on a "mobile communications device," the law as written applies to GPS devices. Of course, police won't enforce the law against a guy looking at his Garmin. And that will lead to a challenge of the ordinance on the grounds of selective enforcement.

Third, this ordinance will be just one more pretext to pull people over. I can already see an officer's arrest report:
Observed defendant holding something in his hands and looking at it. During traffic stop for suspicion of TWD, defendant made furtive movements with his hands, causing this officer to fear for his safety. Officer approached the vehicle and ordered the defendant out. After defendant was handcuffed for officer safety, the vehicle was searched and ________ was found.

Is this really a good use of City resources? The Enquirer has recently run stories about the cost of police overtime for court appearances. Do we need another reason for officers to come to court in pursuit of a hundred bucks for the city coffers?

This would be an awfully good time for those conservatives who like to complain about "the nanny state" to speak up.

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