Five Reasons Why I Oppose Anti-Texting Laws

There has been a lot of discussion about the 84th Legislature's failure to pass Representative Craddick's HB 80. Having worked for the Legislature during the recent Session, I saw and still see the issue of texting and driving differently than Rep. Craddick. To be clear, I do not think that it is good social policy for anyone to text and drive. I think that any activity that distracts or tends to distract a driver should be removed from the driver's area of attention while they are driving. However, the government cannot be (and should not be) the police to all social policy conduct especially in cases where it is not clear that a government solution outweighs the infringement of personal liberties. In support of this last statement, I have accumulated several reasons why 13 of 31 Texas State Senators opposed HB 80.

1. Police have limited abilities to prove that a driver was texting while they were driving. This question may sound too simplistic, but how will a police officer prove that you were texting while you were driving? Imagine a scenario where a Midland police officer sees someone that they "suspect" of texting while they were driving. Under current law, an officer can pull someone over based upon mere observations of what they believe to be illegal conduct. Once stopped, the officer should inform the driver of the reason for the stop. If the driver denies the accusation of texting while driving, how does the police officer prove the offense? Is the phone in plain view so that the officer can clearly see that the text screen is open? How does the officer know when the last message that they now clearly see was the one sent while the driver was driving the car? How does the officer know when any message a cell phone was sent, much less received, much less read? The officer's only options are to either illicit a legal confession from the driver or to search the cell phone records of the driver.

If the officer does not illicit a confession, the officer's only way to prove the case is by searching the cell phone records of the driver. Therein lies the problem. In the recent United States Supreme Court decision of Riley v. California, 573 U.S. ___ (2014), the Supreme Court ruled that a police officer cannot search a cell phone without a search warrant. In recognition of the United States Supreme Court decision, on June 20, 2015, Governor Abbott signed House Bill 1396 into law. One of the applicable provisions of the bill is found in Section 2 that specifically provides that "[a] peace officer may not search a person's cellular telephone or other wireless communications device, pursuant to a lawful arrest of the person without obtaining a warrant under this article."

Further, the recently defeated House Bill 80 itself had a provision that stated "[a] peace officer who stops a motor vehicle for an alleged violation of this section may not take possession of or otherwise inspect a portable wireless communication device in the possession of the operator unless authorized by the Code of Criminal Procedure, the Penal Code, or other law." And although recent technology allows a quicker turnaround of search warrants for an officer in the field, keeping a suspected motorist detained for this particular offense for more than an hour becomes not only an unnecessary intrusion on the motorist, but it also brings into question whether or not this is a good use of taxpayer resources.

2. Enacting another law that creates yet another traffic offense may lead to accusations of unlawful racial profiling. As most of us know, racial profiling is the practice of targeting/suspecting people of certain groups of engaging in certain illegal activities based upon that person's race, ethnicity, religion or national origin. One area that illegal racial profiling arises is in the circumstances surrounding traffic enforcement. Minorities have been able to argue that the police have used simple traffic infractions as invented "pretexts" to stop them. These pretextual stops of police officers are used to develop further probable cause to search a person or persons inside a particular vehicle or to search the vehicle itself.

While pretextual stops are legal if there was an actual observable offense, the proof that there was an actual traffic violation becomes problematic in this case because an officer's ability to observe a texting driver while the officer himself is in his own moving vehicle raises credibility issues. In the best of circumstances, in order for an officer to personally observe a texting while driving offense, the observable offense most likely would have to take place during the daylight hours. Even then, an officer's personal view would have to be unobscured. If either the officer's vehicle or the suspect vehicle had tinted windows, there would have to be a believable explanation on how the officer actually saw the infraction. Some minorities may raise the appropriateness of any traffic stop predicated solely on officer's observation that a driver was texting while driving.

To be clear, I did not say that it would actually lead to racial profiling, but it certainly may lead to more accusations.

3. There are already laws in place to protect Texans from the effects of people who text while driving. Section 545.401 of the Transportation Code states that "[a] person commits an offense if the person drives a vehicle in wilful or wanton disregard for the safety of persons or property." As a former state prosecutor, I can say that legally speaking, this is one broad statute. In speaking to other respected lawyers, they too recognize that the Texas reckless driving statute could be used to prosecute someone who texts and drives badly.

There are two main differences between the reckless driving bill and the proposed HB 80. The reckless driving actually requires bad driving; HB 80 does not require bad driving. Imagine this scenario: A person is sitting at their desk and they compose a text message but for some reason did not send the message; then, they get up and jump into their car and take off and looked down at their phone and realize that their message had not been sent. Even if a person was maintaining their lane of traffic and not causing anyone else to swerve by hitting the send button, that driver would be committing an offense by hitting the "Send" button. Under HB 80, a person just committed an offense.

What is also different between HB 80 and the reckless driving bill is the penalty. HB 80's penalty provisions called for penalties of $25 - $99 for a first offense and $100 - $200 for each subsequent offense. The reckless driving penalty has been set the same for every offense - up to a $200 fine or up to 30 days in jail or both. Thus, for those that think that penalties will deter, they should ask their local law enforcement officers why they are not using the reckless driving law for these kinds of offenses. This leads me to once again to ask the question, "Now why do we need another law to stop bad behavior?"

4. Many times advocates of this anti-texting law quote the numbers of accidents due to distracted driving. While this information is useful, it is not conclusive that all of these distracted driving accidents are caused by people using their cell phones. I am personally aware of an attorney friend of mine who dropped his cigarette while driving and wound up having a serious accident that left him unable to practice law anymore. How many of us have seen men shaving, women putting on makeup, people eating huge burgers or even changing clothes while driving? Thus, if we are serious as a society about distracted driving, let's ban all of the things that could be a distraction inside the car: that means no more smoking or eating while driving and no more putting on makeup while driving. Finally, I point out that there is a least one study that concludes that texting bans don't reduce crashes.

5. There is no proof that people's behavior will change if there is a specific ordinance enacted that bans texting while driving. It is my observation here in Midland, Texas that traffic laws are not a deterrent to bad behavior. People still run red lights and stop signs. There may be less speeding violations simply because the speed limits have been raised in areas. We can enact more laws, but will the laws actually deter bad behavior? Do we have any proof that had any of these anti-texting laws been in place that they would have prevented accidents? In the present case, people already know that texting while driving is dangerous. But, they still do it. And, they will still do it because that is the type of society that we have become.

Conclusion: Texting and driving has caused untold grief and misery. Those who favor new laws dealing with this issue should realize two things: 1). that there is already a law on the books that deals with the issue; and, 2). that it is not always the government's job to protect the citizens from every conceivable harm that could befall us. Again, we can have more and more laws to keep all of us absolutely safe from all of the potential harms that could befall us. However, if that were to happen, we would wind up living in a cardboard box with sides so high that we could not climb out if we wanted to. A better solution to the texting and driving problems are education and a stricter enforcement of the reckless driving law for all distracted driving not just the texters.

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