Sunday, December 9, 2018

Texting and other Distracted Driving

Technology is changing the world around us. Another example came up last June as reported by Fox in She says she was just checking her Apple Watch. This is interesting as various states have passed legislation aimed at distracted driving. Florida has a law, but is considering changes yet again. Senate Bill 76 (SB76) has been filed for the 2019 session according to the Tampa Bay Times. A recent opinion piece in the Times refers to current law as a "blunder." Safety is an overall societal concern, but motor vehicle accidents are a leading cause of workplace injury (in case you were tempted to ask "what does this have to do with workers' compensation?"). 

Currently, Florida prohibits texting while driving in section 316.305, Fla. Stat. But, that provision is specific to texting and is limited to a "secondary action," meaning that a driver can only be ticketed for this if they are stopped by an officer for some other reason. The proposal in the language of SB76 removes specific references to "texting" and "text messaging" in favor of broader prohibition on "using a wireless communications device" and "listening or talking on such a device . . . for the purpose of nonvoice or voice interpersonal communication." The limitation to secondary offense would also be removed by this bill. 

SB76 would thus preclude making or receiving telephone calls while operating a motor vehicle; it says a person cannot operate a motor vehicle "while sending or reading data or listening or talking on such a device for the purpose of nonvoice of voice interpersonal communication." This bill specifically authorizes law enforcement to stop a driver "using a wireless communications device while driving." That is a reasonably broad prohibition. 

However, there is a specific list of exceptions already in section 316.305 regarding "texting," which would remain even if "texting" is expanded as SB76 seeks. Law enforcement, fire, and medical services professionals may use their mobile device. Anyone may use their device for "reporting an emergency," or for "navigation" or "radio broadcasts," or to receive messages that are "safety related . . . traffic, or weather alerts." 

And, there is a clarifying sentence that "a motor vehicle that is stationary is not being operated and is not subject to the prohibition in this paragraph. Thus, it would appear that interacting with your mobile device at a stop light would not be a violation. Furthermore, as the age of The Jetsons approaches ever more rapidly, the law "does apply to a motor vehicle operator who is operating an autonomous vehicle, as defined in section 316.003, in autonomous mode" (and no, that does not include merely "driver assistance systems"). 

Shortly after SB76 was filed, House Bill 45 (HB45) was filed. It also addresses section 316.305, Fla. Stat. and distracted driving. It likewise is focused on "using a wireless communications device," rather than "texting" specifically. This amendment would forbid "holding or otherwise touching" such a device while operating a motor vehicle. In the list of specific exclusions (this "does not apply") would be added "communication through the use of a hands-free device." HB45 similarly removes the "secondary action," limitation. Thus, either bill would make mobile device use a "primary offense."

An interesting element of HB45 would require police agencies to track the race of those ticketed for "holding or touching a wireless communications device." That data would be compiled in a report annually to the "Governor, the President of the Senate, and the Speaker of the House."

Last summer, a Canadian driver was stopped at a red light. A police officer "noticed a 'glow' in her car from an electronic device," and observed the driver to "glance up and down about four times." The driver was also "slow to start moving when the light turned green." The officer testified that "he had to shine a light to get her to go, at which point he pulled her over and ticketed her." The British Broadcasting Company (BBC) also reported on this. 

The driver's defense was that she was merely "checking the time." The court interpreted "Ontario's anti-distracted-driving law, which bans driving 'while holding or using a handheld wireless communication device.'" And, the driver was fined $400.00 by the court, despite the driver's argument that her "Apple Watch shouldn't be considered a handheld device." The Judge, according to the BBC, said "smartwatches were a distraction as much as a 'cellphone taped to someone's wrist.'" In a similar story, 9to5Mac reports a Canadian was fined for changing music on an Apple watch. 

In a California case, Benchmarks reports that a judge fined a driver who took a call on his cell phone while stopped at a traffic light. The foundation for an appellate court upholding that decision was that "driving" "encompassed a 'fleeting pause' at a traffic light." There is language in the interpretation focused upon the car being in gear, held in place only by the brake. The suggestion being that shifting into "park" might change the outcome. What would be the impact of cars at traffic lights habitually shifted into "park" so a device could be checked? 

Back to Canada, Fox, BBC and others note studies that "various studies" support that "hands-free devices in general (are) not safer than handheld devices while driving." Furthermore, there are studies that "smartwatches in particular slow down driver response time." According to the National Safety Council, "at any moment, 7% of drivers are using cell phones." And, "drivers looking out the windshield can miss seeing up to 50% of what's around them when talking on any kind of cell phone." However, somehow talking to a passenger in your car is not "just as distracting." 

But, of course, none of us are guilty, right? In 2017, the Sun-Sentinel reported that as many as "92 percent of drivers nationwide with cell phones have used them while in a moving car." The study that reached that conclusion also said that generally "Florida ranks second only to Louisiana for distracted driving." That could be more than phones though. 

There are those who reportedly shave while they drive. There is some evidence to link eating and drinking to distraction, as well as smoking. How about reading a book, or putting on makeup? But notably, Safestart ranks the number one distraction as being "lost in thought." That is somewhat troubling, as it attributes that in 62% of the distracted events, and "cellphone use" in only 12% (number 2 on the list), to perhaps 14% (because another listed category is "reaching for a device"). No plans have been found to allow primary ticketing for that vast population driving while "lost in thought." 

There is also some suggestion that distractions affect us all, not just those who are not emergency responders. One officer claims "distracted driving is a just as serious and problematic among police officers as it is among civilians." But, the law seems inclined to exempt all such distraction for "law enforcement" and others regardless of whether such use is "necessary," or "emergency," or even work-related. The exception of Section 316.305 seems to apply to "law enforcement" and others in the broadest context. But officers do cause accidents while distracted, according to NBC 13, WAVE3 News, and NBC5

So, where would SB76 or HB45 bring Florida? The National Conference of State Legislators says that only 16 states "prohibit all drivers from using hand-held cell phones while driving." However, 47 states and four territories ban text messaging for all drivers. That website has a chart illustrating what is banned where, and which states have designated primary versus secondary offense. There is discussion in the Times' recent opinion piece referencing the risk of "novice drivers." But, really, if distraction is a problem is it more or less so based on experience? The reports of police causing accidents due to distraction seems to suggest the problem exists despite experience? 

Returning then to the Apple Watch, the question may be whether it is or is not a "hand held." It may be that the answer to that is no different than analyzing the use of a phone, it depends. Not on the device, but the purpose for which it is being used. Could a motorist be ticketed for "touching" his or her watch under the proposed Florida legislation? Will distinctions of movement, "stopped" or in "park" make a difference? At the end of the analysis, will there be less accidents and injury with change in the law?

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