The 7th Circuit issued an opinion (h/t Indiana Law Blog) overturning a conviction where the police officer’s initial stop of the defendant was based on Indiana’s texting-while-driving law, IC 9-21-8-59, the relevant part of which reads:
(a) A person may not use a telecommunications device to:(1) type a text message or an electronic mail message;(2) transmit a text message or an electronic mail message; or (3) read a text message or an electronic mail message;while operating a moving motor vehicle unless the device is used in conjunction with hands free or voice operated technology, or unless the device is used to call 911 to report a bona fide emergency.
Essentially, the officer stopped the suspect because the guy was messing with his phone on the highway. After the stop, the officer found 5 pounds of heroin in the guy’s car. But, it turned out the suspect wasn’t texting; rather, he was looking for music — which, as the law is written, is not illegal. The 7th Circuit determined that the officer did not have probable cause to stop the car and, therefore, the search was illegal. The State argued that since the guy was looking at his phone, and not the road, while driving, the officer had probable cause to stop the vehicle. The 7th Circuit disagreed. The law only prohibits texting and looking at e-mail. That means there are a great number of legal activities in which the driver could have been engaged while looking at his phone (e.g. making and receiving phone calls, inputting addresses, reading driving directions and maps with GPS applications, reading news and weather programs, retrieving and playing music or audio books, surfing the Internet, playing video games—even watching movies or television.) The officer had no probable cause to believe the motorist was engaged in texting rather than one of those legal activities.
Back in 2009, I commented on a bill that had language similar to the language that ultimately passed:
This bill highlights some of the difficulties in drafting legislation. Sometimes it’s tough to keep up with technology. The bill changes the definition of “telecommunications device” to include “The term includes a: (1) wireless telephone; (2) personal digital assistant; (3) pager; or (4) text messaging device.” But, at times, you’ll find the difficulty of keeping up with new technology is really a matter of confusing the bottle with the wine. Often enough, even if the drafter recognizes this problem, there isn’t much to be done if the courts or the legislator are focused on the bottle.
In this case, the problem being addressed is the fact that the driver isn’t paying attention to the road. Whether the attention is focused on a text message, a cell phone, a book, a CD case, a map, or a screaming child isn’t terribly important in terms of the actual risk of driving while not paying attention. But, the way the politics are set up and probably the way the case law has developed, simply attempting to penalize “driving while distracted” probably would not be effective, even though that’s the real problem.
So, maybe back to the drawing board on this law.
I wonder what the LSA attorneys commented about it at the time. But isn’t this part of the new legislative process: pass the law and let the courts work it out.
I saw this case on the Indiana Law Blog also. Posner was a little guarded in his analysis and criticism of this Indiana law. And I suppose it was just schadenfrude that the guy just happened to have thousands dollars worth of heroin in his car.
A simple solution to the unenforceabiity of this law is to ban all hands on use of communication devices and require the use of hands free devices. This is not to say that drivers using talking on Bluetooth are any less distracted, but it does give the law a justiciable standard.
When I lived in Albuquerque there was a city law banning the use of hand held devices. But for the first offense the person was given a diversion if they would purchase a hands free device or other set up.
That would be a simple way to do it, but I’m not sure it makes sense. I think probably the worst thing people do is text/read e-mail/surf the web because that really takes drivers’ actual eyes away from the road in a way that talking on the phone, either hands free or handheld, does not. The other complication, as Doug notes, is that our phones do so much today. Suppose a driver wants to change her destination on a GPS. Under your proposed solution, the legality could depend on whether the GPS is integrated into the car, is a standalone Garmin-type unit, or happens to be an app on a smartphone. I agree that it’s ideal to not fiddle with any GPS unit while driving down the road, but I’m not sure the nature of the specific device should govern the legality. The same is true for messing with music or podcasts on a phone. Sure, ideally we program a playlist before leaving and don’t touch the thing while moving. But on the other hand, is fiddling with a phone for that purpose any different from what we would have done 10 years ago (flipping through CDs) or 20 years ago (looking for the right cassette) or surfing through radio stations? I think Doug nailed it in his 2009 post. The problem is distracted driving, not a particular type of device. And to illustrate Doug’s point, 2009 seems like yesterday to me, but there currently are young adults in college who probably have never laid eyes on a PDA or a pager.
John M., you make some good points. The nonprohibited uses outside texting would still involve interacting with the device screen. Perhaps in cases like this where law enforcement and justiciable standards may not be capable of being developed, the legislature should just let it go.
Oh, the number of potential winnable challenges that await in the Indiana Code!
Wouldn’t this law be better summarized by “Drivers may not engage in any activity which causes them to take attention away from the act of driving?”
I’ve seen people tell fishing stories to their passenger with hand expressions and focus fully on the face of the passenger that is far more dangerous than changing the GPS route on their phone.