What About Driving While Confused About Distracted Driving Laws?

Wednesday, November 9th, 2011

Slate’s Farhad Manjoo correctly diagnoses the problem with bans on texting, cell phone use, and other forms of distracted driving . . .

During the last five years, 34 states have passed laws that ban texting while driving. The laws in each of those states differ widely—some make it illegal to “send” texts, while others prohibit “electronic communication” as well as “reading” texts. Each of these versions would make Siri-based texting verboten, because even if you dictate a message, you’re still, technically, sending some kind of electronic communication (and if you glance at the screen to make sure Siri correctly transcribed your message, you’re reading it).

This is ridiculous. Sure, it’s a good idea to discourage texting behind the wheel. But the laws’ failure to anticipate voice-texting illustrates the larger problem with legal strictures on automotive technology: The laws are narrow, annoyingly arbitrary, and inconsistent across state lines. What’s more, they’re minimally enforced and consequently ineffective—there is no evidence that texting laws have reduced accident rates…

The worst thing about these laws is their opacity. Because enforcement is spotty—I see people talking into handheld cellphones all the time—and because few of these specific tech questions have been raised in court, nobody knows how we can use our devices. In some ways, the mish-mash of rules makes enforcement more difficult. If you see a guy typing on his phone while driving, should you call the cops? If he’s otherwise driving safely, I wouldn’t—he could just be dialing a number, which is legal.

…but he then proposes a solution that will make all of those problems worse.

A better system wouldn’t make distinctions about what we do on our gadgets, but would instead look at the effects of our actions. The best rule would simply say, Don’t do anything in your car that could be unsafe. In 2009, Maine adopted just such a policy. Its law doesn’t make any particular technology illegal in the car. Instead, it bans “distracted driving”—driving while you’re engaged in any task that could impair you. This obviously includes texting, but the law is expansive enough to outlaw other bad driving habits—eating, applying make-up, or reading a roadmap. Theoretically, it could also allow some safer uses of technology, like punching an address into your GPS while you’re stopped, or asking Siri to remind you to call your doctor when you get home.

Theoretically, sure. But you’ve just taken the problem of too many jurisdictions having varying definitions of distracted and made it exponentially worse. Now whether or a motorist has violated the law is at the individual discretion of every police officer in the country. You now have about 600,000 different definitions of distraction. Some studies have shown that having kids in the back seat is actually more distracting then a .08 BAC or talking on a cell phone. That in theory could now be illegal. So could fumbling with your CD player. Or glancing down to change songs on the iPod that’s plugged into your car stereo. I’d think you’d very quickly be looking at a logjam of cases in which traffic courts are asked to sort out what’s an acceptable distraction and what isn’t.

The idea would also make the enforcement problem much, much worse. How does a police officer look into your car to determine whether or not your eyes are on the road when you’re whizzing by at 55 mph? If the cops is actually driving next to you, isn’t asking cops to gaze into the interiors of other cars on the road itself a pretty significant distraction? Averted eyes aren’t likely to be caught on a police dash cam, either.  In fact, the only time a cop would be able to clearly see what you’re doing, or whether you’re looking squarely at the road, is when you’re driving very slowly or stopped, which of course are the times when driver distraction is least dangerous.

When you put such a vague determination of lawbreaking solely at the discretion of cops, you also open the door to abuse. Pretext stops for drug profiling just got a lot easier. Meeting ticket quotas (yeah I know, those don’t exist!) and blanket revenue generating get easier too. Forget installing speed cameras. If the city needs revenue, just quietly instruct city cops to loosen up their definition of distracted for a while. Given the examples we’ve seen of cities jeopardizing public safety by shortening yellow lights in order to generate revenue, or cops in New York City planting drugs on people to meet arrest quotas, it hardly seems far-fetched.

The simplest solution here is to only pull over and ticket people when they commit actual traffic violations. If you want to raise the fines for people who commit infractions likely caused by driver distraction–swerving into other lanes, for example–go for it. It might even make sense to add some extra punishment for people who cause accidents while distracted, provided you can prove they were distracted at the time of the accident. Or just raise fines and penalties across the board. Though it’s also at least worth asking why we’re having this discussion in the first place. It isn’t at all clear that this is an urgent problem. Roadway fatalities per passenger mile have fallen dramatically over the last 20 years, the same period that all these new driver distractions have become so common.

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51 Responses to “What About Driving While Confused About Distracted Driving Laws?”

  1. #1 |  Irving Washington | 

    Exactly right, Radley. It’s like giving the police a loitering ordinance.

  2. #2 |  StrangeOne | 

    So Farhad wants to clear up all those confusingly vague laws that can be arbitrarily enforced with one extremely vague law that can be arbitrarily enforced?

    So when are we going to get to the point where cops just abandon all pretense and hand out general fines at random? Thats all most traffic laws are, a semi-random tax that justifies police jobs and keeps the proles reminded of who is in charge.

  3. #3 |  Tom Sullivan | 

    You got it Radley, punish an actual offense. If and when an accident occurs, whether the driver was (prove-ably) distracted should be a consideration during sentancing. Otherwise, no victim – no crime.

    Or we could go with what Gallagher suggested: all drivers are armed with suction dart guns that say “Stupid.” If a car is seen with x number of darts attached to it, a cop gives them a ticket for being stupid.

    That’s as good or better than what Farhad is suggesting…

  4. #4 |  KBCraig | 

    Both the existing problem, and the proposed much larger problem, have one simple solution, based on that time-tested schoolyard legal principle: “No harm, no foul.”

    If someone causes an accident or damage, it doesn’t matter if they were texting, putting on makeup, or falling down drunk: hold them responsible. If they don’t, then there is no problem in the first place.

  5. #5 |  Black 27 | 

    Yeah well you need to consider that Farhad Manjoo is an A-1 creep who relentlessly flogs the notion that privacy is irrelevant in our new techno-utopia and that everyone should just gleefully deliver 100% of all information about themselves up to the tender mercies of the Facebook Borg Collective.

    So quite unsurprising that he wants to ban all forms of “distracted” driving. (One might ask him if he would favor an exception to this law for indicating to Facebook what your exact location and destination are.)

  6. #6 |  ric_in_or | 

    This is a problem with many laws.

    Should we ticket the Fed’s for today’s EAS test? ‘Cause that was a distraction if you had the radio on while driving.

    Driving under the influence? No – target measurable behaviors – swerving, crossing the white line, slowing and speeding.

    Is it a screw driver, or is it a burglary tool?

    What can the officer see, hear, taste, touch or smell? Behaviors can be regulated, other intentions should not be.

  7. #7 |  Ron | 

    Virginia has had a catch-all law, “Failure to Maintain Full TIme and Attention”, which, for better or worse, is similar in effect to Maine’s catch-all “distracted driving” law. The odd thing is it is rarely enforced.

  8. #8 |  Almanian | 

    What Radley said.

    Clearly, what we need are broader, vaguer laws that leave more discretion in the hands of the Thin Blue Line. What could possibly go wrong?

  9. #9 |  Ron | 

    Virginia has had the law for decades, that is.

  10. #10 |  Luther | 

    Is it just me, or is it reasonable to say that, if someone is willing to engage in an activity that may get them killed, they may not be disuaded by a ticket? But then government coercion based on probabilities seems fundamentally flawed to begin with.

  11. #11 |  EH | 

    I always heard that on the Autobahn in Germany, if you get in an accident and aren’t wearing your seatbelt, you forfeit all personal injury claims. That always seemed like a sensible approach.

  12. #12 |  Dave Krueger | 

    It’s the speed of our vehicles that makes this stuff dangerous. I think we need to go back to the horse and buggy days. It would be great because it would also benefit the professions that lost out to the auto industry (and who didn’t have a powerful politically connected union to lobby for a taxpayer funded bailout). That would include all the folks who shoe horses, clean up the manure, bred horses, produced the feed, etc. We could call it organic transportation and sell it to liberals who go nuts for all that back-to-nature shit. Damn. Sometimes I am simply astounded by my own capacity to solve the world’s problems. I should definitely be in charge of everything.

  13. #13 |  MPH | 

    If you obey all the traffic laws that apply to when to yield, you’ll never be at fault in an accident. As long as that’s what you’re doing, I don’t care if you’re driving while dead. Anything beyond that is an futile attempt to legislate away unwise behavior, and that will NEVER work (nothing can be made completely foolproof, because fools are so ingenious).

  14. #14 |  Goober | 

    I’ve been talking on my cell phone while driving for 15 years now. I’ve never been in an accident and i can assure you that I in no way plan to act in a manner that will endanger my life or my family’s life while I’m driving. i can’t for the life of me understand why talking on a phone is any more distracting than talking to someone in the car with you, which is perfectly legal.

    So i have no other choice than to determine that talking on a cell phone IN AND OF ITSELF is not a dangerous act, and should not be punished. If someone is driving erratically because they are distracted while driving, don’t we already have laws on the books to deal with that? I ca’t figure out how a new law is needed at all; if someone is doing something – anything at all – that is causing them to drive dangerously, then use the existing negligent/erratic driving laws on the books to ticket them and send them on their way.

  15. #15 |  Dave Krueger | 

    #14 Goober

    i can’t for the life of me understand why talking on a phone is any more distracting than talking to someone in the car with you, which is perfectly legal.

    The government would probably agree with you on this and eventually outlaw talking to someone in the car with you.

  16. #16 |  whomever | 

    “If someone causes an accident or damage, it doesn’t matter if they were texting, putting on makeup, or falling down drunk: hold them responsible. If they don’t, then there is no problem in the first place.”

    That seems a little overbroad; if a driver is swerving across multiple lanes of traffic, blowing through crowded intersections against the red, or going 75 MPH past a school while kids are crossing, or speeding the wrong way on the interstate, I’m not sure it’s wise to watch near miss after near miss until the inevitable tragedy occurs before taking action.

    That’s not to say I oppose the general principle, but reckless driving isn’t OK until the instant of collision.

  17. #17 |  whomever | 

    “i can’t for the life of me understand why talking on a phone is any more distracting than talking to someone in the car with you, which is perfectly legal.”

    Actually, that makes sense to me. When you’re talking to a passenger and doing something that requires your attention – say merging onto a crowded freeway – passengers in my experience unconsciously pause the conversation until you’re safely merged. Someone on the other end of the phone doesn’t know to do that.

  18. #18 |  Dave Krueger | 

    #17 whomever

    Actually, that makes sense to me. When you’re talking to a passenger and doing something that requires your attention – say merging onto a crowded freeway – passengers in my experience unconsciously pause the conversation until you’re safely merged. Someone on the other end of the phone doesn’t know to do that.

    When I merge into traffic, passengers in my car are usually yelling, cursing, and tightening heir seat belts. I find that very distracting.

  19. #19 |  Anthony | 

    @12
    Dave,
    Horse and buggies killed more people, per capita, in New York City at the turn of the 20th century than cars do today.
    Also, according to the book Super Freakeconomics, horse exhaust was worse than car exhaust.

    (Yes, I know you were being sarcastic)

  20. #20 |  MH | 

    “That’s not to say I oppose the general principle, but reckless driving isn’t OK until the instant of collision.”

    You misunderstood; no one said reckless driving is OK. Quite the contrary: a driver committing numerous dangerous infractions of traffic law is certainly a reason to fine him or arrest him, depending on severity. The argument was that “distracted” driving is too nebulous a concept and that police should take action only when there’s objective evidence the driver is failing to operate safely. Driving the wrong way on a freeway would _probably_ qualify :-)

  21. #21 |  croaker | 

    @6 Even worse: Are you a diabetic or a junkie? One of my nightmares is getting a steroid-crazed drug warrior with a badge busting me in a restaurant for felony insulin and dying in a holding cell of hypoglycemia.

  22. #22 |  whomever | 

    “You misunderstood; no one said reckless driving is OK.”

    The quoted post said “If someone causes an accident or damage, … hold them responsible. If they don’t, then there is no problem in the first place.”
    I read that as there isn’t a problem unless there is an accident.

  23. #23 |  JohnJ | 

    Well, we could just abolish all laws, and replace them with one law that says “Don’t do anything bad.” It’s the same logic.

    The whole point of having a legal code is so that people know what is and isn’t legal.

  24. #24 |  Joe in Missouri | 

    We don’t need to give out of control, criminal, police departments any more power to rape and steal from us. You are right.

  25. #25 |  Rojo | 

    Having almost been run over a couple times by idiots yapping on their cell-phones, when I had the pedestrian right of way, I was initially sympathetic to these laws, but I have to say that I’ve been convinced by Radley’s arguments (prior to this particular post).

    Also, how am I to say that the yapping on the cell-phone part was what almost got me ran over, as opposed to just the plain old idiot part?

  26. #26 |  the other rob | 

    England has long had an offence of “Driving without due care and attention.” Seems to me that it might be helpful to look at how that has been enforced, for the purpose of comparison.

  27. #27 |  2nd of 3 | 

    Farhad Manjoo…ugh. I know tech writers often get attacked unfairly, but he has a really bad habit of confusing his opinion with fact, and mischaracterizing data to fit his (usually hyperbolic) claims (Google+ will be dead in two years!!! Robots will take ALL the jobs!!!).

    Anyway, haven’t most states always had a “Failure to pay proper time and attention” laws? I know I got that one in VA a few years ago. Just up the fine like Radley suggests.

    That said, I have a question about this part: “It isn’t at all clear that this is an urgent problem. Roadway fatalities per passenger mile have fallen dramatically over the last 20 years, the same period that all these new driver distractions have become so common.”

    Have fatalities gone down because we are getting in fewer accidents, less severe accidents, or because safety equipment (e.g. airbags, crumple zones, etc) is better at protecting the meatbags within, or all of the above? Are severe injuries down as well? If the accident rate is the same or higher, I’d think the problem may be fairly urgent even if the fatality rate is lowering. Accidents often cause traffic jams leading to wasted man-hours, not to mention higher insurance premiums.

  28. #28 |  2nd of 3 | 

    I’ve been talking on my cell phone while driving for 15 years now. I’ve never been in an accident and i can assure you that I in no way plan to act in a manner that will endanger my life or my family’s life while I’m driving. i can’t for the life of me understand why talking on a phone is any more distracting than talking to someone in the car with you, which is perfectly legal.

    Your behavior is quite common. I do it myself. However, we shouldn’t fool ourselves that because we haven’t caused an accident YET that the behavior isn’t dangerous. Yes,talking to a passenger is also a distraction. There’s a reason commercial pilots are not supposed to discuss non-operational matters in the cockpit.

  29. #29 |  Tom | 

    This will all be irrelevant in about 10 years. We will get into our new autodrive cars and be taken wherever we need to go. We will eat, drink alcohol, text, have sex, sleep, watch movies, etc. as we go. The cars may not even have windows. And the autodrive cars will be programmed to never ever break a traffic law.

    Goodbye drunk driving industry. Goodbye speed traps. Goodbye short airplane flights. Goodbye passenger rail. Goodbye roadside motels. Our live will be utterly transformed by autodrive cars and the technology to do so is here today.

  30. #30 |  2nd of 3 | 

    What Tom said, but I think more like 15 years.

  31. #31 |  MH | 

    Yeah, it seems inevitable that at some point, libertarians and nannies will be arguing about whether cars should have an option for manual control.

  32. #32 |  MH | 

    @22 Guess I mis-read. My post should then be interpreted as defending Radley’s point of view and not so much the person you were quoting.

  33. #33 |  Player1 | 

    “It might even make sense to add some extra punishment for people who cause accidents while distracted, provided you can prove they were distracted at the time of the accident.”

    How do you cause an accident without being distracted?

    “No Officer, i wasn’t distracted, i was just trying to ram in to the back of this old ladies moped to see if she could safely handle the impact at 55 miles per hour.”

    Accidents are called so because of the literal definition. There are always going to outside factors that hinder ones ability to drive, making those outside factors punishable is a little draconian and puts a little too much emphasis on the widely misunderstood fact that everyone is not perfect and can’t be expected to never have an “accident”. I think wrecking your car, having insurance go up and living with the fact your metal death box nearly killed everyone with range of your momentum at the time is quite enough.

  34. #34 |  Radley Balko | 

    How do you cause an accident without being distracted?

    You could drive too fast and lose control. You could intentionally run a red light or stop sign. You could make an unnecessarily risky pass. You could blow a tire. You could be intentionally tailgating someone.

  35. #35 |  Player1 | 

    sounds like we should punishing those offenses more harshly than distracted related accidents.

    Here is an idea. Instead of foolishly wasting tax payer money to write ridiculously vague and loophole-filled laws, why not instead vamp up driver education courses? I honestly feel like there should be an I.Q. test involved. Cause once again, “metal death box”.

  36. #36 |  2nd of 3 | 

    “Yeah, it seems inevitable that at some point, libertarians and nannies will be arguing about whether cars should have an option for manual control.”

    Won’t matter. Even if the gub’mint doesn’t pass a law, insurance companies aren’t going to insure manually driven cars for a reasonable price, once they are proven safer than human drivers. It’ll be like trying to insure a car today with no seatbelts, airbags, or brake lights. The first movement we’ll see is in the trucking industry. Automated freight trucks will save gas, money, and time for the companies, and will probably be safer to boot. It may take a while for the first company to do so, but after that the rest are going to trip over themselves updating their fleets.

  37. #37 |  MH | 

    It was a long time ago, but I recall my Driver’s Ed instructor preferring the word “collision” over “accident.” The reason being that “accident” implies it is something that just happens, but in most cases someone chose to drive unsafely in some way, resulting in the collision.

  38. #38 |  Max | 

    True story: While driving on the Omaha Dodge street expressway, fairly heavy traffic, moving at 65 mpg, looked over at the car next to me: driver was playing the guitar, both hands on the guitar, using knees to drive. You simply cannot legislate away stupidity.

  39. #39 |  MH | 

    “Won’t matter. Even if the gub’mint doesn’t pass a law, insurance companies aren’t going to insure manually driven cars for a reasonable price, once they are proven safer than human drivers. It’ll be like trying to insure a car today with no seatbelts, airbags, or brake lights.”

    Such a car isn’t even street legal. Even an antique needs brake lights. But anyway, you’re looking too far ahead; there will be a long transition period before cars are totally automated, if they ever are. The car culture is really big and lots of people will still want to drive manually, sometimes. Further, if manual driving becomes something for “enthusiasts,” who perhaps require a special license (or perhaps the _only_ license, since using an automated car may not need a license), those people are likely to be decent drivers and should be insurable.

  40. #40 |  MikeH | 

    Drive a motorcycle every day and see how many times some idjit in a cage, talking on a cell phone changes lanes into the one you’re occupying. See how many times a car in front of you suddenly drops speed by 15 miles per hour when they pick up the phone. Watch for the jerk in the fast lane doing 10 miles below the speed limit because he’s so focused on the business call he’s engaged in. An so on, ad infinitum.

    The heck with law against talking on the phone or texting while driving, how about a law requiring all vehicles to be encased in some sort of Faraday cage to block cell signals entirely?

  41. #41 |  fwb | 

    Distracted driving laws have been on the books in many states since… well forever. It’s just that the idiots we elect are not smart enough to “read” the laws that already exist AND these ignorati want to be “the one” who pushed through that tough on crime law.

    We just add more and more layers of laws.

    It’s time for libertarians to push for sunset amendments to all constitutions. Sunset laws of about 3-5 yr for every piece of legislation would be good.

  42. #42 |  fwb | 

    n.b. Having all laws expire would keep the bastards busy just redoing the laws that might be needed.

  43. #43 |  Mannie | 

    #37 | MH | November 10th, 2011 at 1:30 pm

    It was a long time ago, but I recall my Driver’s Ed instructor preferring the word “collision” over “accident.” The reason being that “accident” implies it is something that just happens, but in most cases someone chose to drive unsafely in some way, resulting in the collision.

    In highway engineering, we just call them crashes. “Accident” is a disapproved word for the reason you cited.

  44. #44 |  2nd of 3 | 

    Such a car isn’t even street legal. Even an antique needs brake lights.

    Obviously my weak attempt at humor was too weak.

    But anyway, you’re looking too far ahead; there will be a long transition period before cars are totally automated, if they ever are. The car culture is really big and lots of people will still want to drive manually, sometimes.

    Just as there are people who still love to ride horses, there will always be manual drivers, agreed. And you’re correct those people will be insurable, but I think the idea of American car culture is oversold – aside from a couple of friends, practically everyone I know uses their car for either pure transportation or as a status symbol (big, fast, pretty, etc). Very few past adolescence actually drive because they enjoy driving. It’s generally seen as a chore, and I think most people will gladly give it up as long as they can keep their convenient freedom of movement. Now contrast that with every motorcycle owner I know; the whole point for practically every one of them is that they love the experience. They’ll never automate more than a few of those. It would be pointless.

    You’re probably right that I’m looking too far ahead, and there may be setbacks (“Robot car goes crazy! Dozens dead! Film at 11:00″), but I’m convinced it will come quicker than most realize.

  45. #45 |  johnl | 

    I favor capital punishment for “punchbuggy” and “the yellow car game”. The occasion of the nearby passing of a yellow car is no reason to scream in the driver’s ear.

  46. #46 |  Tor Munkov | 

    How about a people’s recycling drive? Everybody hammer their license plates until they’re illegible and donate them for scrap metal. Melt down your driver’s licenses and shred your vehicle registrations. Defiantly occupy your local DMV until they agree to disband and reassign their petty tyrants. E Pluribus Unum.

  47. #47 |  Goober | 

    @ #40 MikeH – Those people could be nailed under the existing “driving while distracted” laws without making it illegal for those of us who can talk on the phone and drive at the same time to do so. I’m really struggling to understand why so many people are having a hard time understanding this. The constant catering to the lowest common denominator in this country is going to drive me insane. Simply because SOME people can’t handle talking on the phone and driving is not a good reason to ban it for everybody. Simply because SOME idiots can’t have a gun in the hosue without shooting themselves, doesn’t mean that we should ban guns for everyone. It is bullshit. Let’s go back to the days when if someone did something dangerous, they got nailed, but if they are driving safely and endangering no-one, the police leave them alone, mmmkay?

  48. #48 |  markm | 

    #17 | whomever | November 9th, 2011 at 7:09 pm

    “When you’re talking to a passenger and doing something that requires your attention – say merging onto a crowded freeway – passengers in my experience unconsciously pause the conversation until you’re safely merged.”

    That’s the time my wife will ask if she can buy diamonds…

  49. #49 |  david peters | 

    All very interesting but the fact remains that the act of texting is much more than a distraction. It requires you to take your eyes off the road completely to focus on a small screen. So does dialing a phone number. Kids in the back seat may be a distraction but I can still yell at them without losing sight of oncoming traffic. The laws may be confusing state to state but they all offer a baseline and an awareness. If you’re driving, drive! I support any law that makes people pay attention on the road.

  50. #50 |  Adam | 

    Bottom line: Cars remain a ridiculously cost inefficient and dangerous mode of transportation. Oh, and they’re incredibly noisy, consume ridiculous amounts of precious urban space, and are much slower than dedicated bus/train routes would be were it not for auto congestion.

    The cell phone issue is merely a system of a completely busted system.

  51. #51 |  Howard Quivers | 

    I think I’m starting to see now why they’re saying that the number of criminal trials are exceeding civil trials: http://lawblog.legalmatch.com/2011/11/17/criminal-court-trials-exceed-number-civil-trials/

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