Is Distracted Driving the new Drunk Driving? Part 2: NMA E-Newsletter #434

Part 1 dealt with how distracted driving enforcement campaigns, fueled by federal highway money, are also dragnets for other offenses. Part 2 examines new law enforcement tools to check on texting while driving.

Currently, law enforcement has great difficulty in determining if a driver was using electronic devices before a crash (and more importantly whether that activity had anything to do with the accident). Few state laws lay out such protocol and even if they did, the only definitive logical means available is through a confession or a corroborating witness. A driver can be tested for driving drunk – not always reliably, we might add – but a driver cannot be tested for the effects of texting while driving.

That might be about to change. The New York state legislature is currently working on a bill called Evan’s law named after Evan Lieberman, a 19-year-old college student killed by a texting driver in 2011. His father, Ben Lieberman has become a tireless advocate against texting while driving. Lieberman says, “Distracted driving is developing into a nameless and faceless crime. It’s creating a huge void in any negative social stigma for the people causing damage and implementing other deterrents. We need to get to the same place where DUI is.”

Currently the bipartisan bill going through both New York state houses (S2306 and A3955) contains language that calls for amending the state’s traffic laws for the field testing of phones and other devices after an accident involving personal injury or property damage. Bill sponsors want law enforcement to use a device such as the “Textalyzer” which is a technology currently in development by the digital forensics specialist company called Cellibrite. CEO Jim Grady says his company’s working prototype can secure information about whether texting happened in 90 seconds, without a device leaving the offending driver’s possession. He claims that the textalyzer device would enable police to only access actions that had taken place on the phone immediately before the crash and not the content that is on the device. If Evan’s law goes into effect, police will then have free rein to download phone data which contains a lot more than just call records. These bills sidestep the Fourth Amendment by allowing for warrantless dumping of driver personal data.

Similar legislation was considered this session in Tennessee (SB0324 and HB0854) and has been deferred to 2018. Recently, Chicago area lawmakers are making noise about soon introducing similar legislation in Illinois.

A more familiar law enforcement device, the handheld radar gun, may soon see an addition to its detection. An unnamed Virginia company is developing a radar gun that can also detect cell phone radio frequencies. Texting a message emits a different frequency than making a call and this new-fangled radar gun supposedly can detect the difference. But what this radar gun won’t be able to detect is who in the car is actually texting—the driver or a passenger.

There are many levels of distracted driving. The police – well, the thought police maybe – cannot stop someone from daydreaming or interacting with their children in their own car. Responsible drivers should understand their own distracted driving tolerances and make decisions about their own behavior.

Safety advocates say they see distracted driving as the new drunk driving. State and local municipalities see another avenue for making money with taxation by citation. If distracted driving laws have similar one-size-fits-all limits as drunk driving, it won’t matter if you drive safely while using your phone because you will be penalized the same as someone who is driving dangerously distracted. 

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