Why You Should Oppose Any New Anti-Texting Bill

On Monday night, I attended the first of two public meetings of Midland’s proposed anti-texting law. Everyone present, those for the bill and those against the bill, were still in agreement that texting is a current problem that needs an active response to. What the real disagreement among the parties is the method and manner of that response. By the end of the evening, I found myself somewhat relieved and, thereafter, further perplexed at the manner the city leaders are responding to the distracted driving problem.

Relieved: I was absolutely relieved to hear that in enforcing the new texting ban, the Midland police would not be asking for access to the cell phones of motorists in any shape, form or fashion. Prosecution for the offense of texting while driving will simply be by an officer’s subjective observation. But, more on this point below.

Perplexed: I was perplexed however at the actions and comments by the city leaders in support of the new bill. Here are but a few of the reasons why I was perplexed.

1. We, the city, have to hurry up and pass this bill to make it look like we are doing something about the texting problem. The city leaders have caught so much grief by the perception of their past inaction, that they now feel pressured to do something right now. I shared with the city leaders my dismay at this “Microwave Generation” mentality. I was and remain perplexed that certain people seem to think that all there is to do to fix a traffic problem is to pass a law. These same people believe that once there is a specific law in place, that there will be an automatic decrease in that prohibited activity. As a lawyer with 12 years of prosecution experience, I can say that motorists’ reactions to new laws just don’t work that way.

Take Texas’ DWI laws and enforcement for example. I cannot think of a more targeted prohibited activity than drinking and driving. Texas has a well-deserved reputation as one of the most aggressive states when it comes to its DWI laws and the enforcement of those laws. Further, some of the nation’s best criminal deterrence programs focus on DWI prevention. Despite enforcement and education, the numbers of indents involving alcohol impaired driving does not have seemed to have diminished. As per MADD, in 2013, Texas led the nation in DWI deaths.

The failure of the Microwave Generation mindset is also exemplified with our nation’s response to gun violence. It seems that with every tragic event that involves a gun, the automatic answer for the Progressives seems to be “Let’s the government pass yet another gun law and try to prevent these types of things from ever happening again.” The Conservatives howl in protest every time somebody mentions something that might offend their second amendment rights. Yet, some of these same Conservatives fail to see their own hypocrisy when they try to pass a new law for a different set of tragic events.

2. We, the city, will enforce this new law based only upon an officer’s subjective observation of what is happening inside another car. Although I respect their honesty, I was not relieved when I heard city leaders admit that an officer’s subjective observation of conduct inside a closed vehicle will be the sole proof against a motorist. As I pointed out to the city leaders for second time, there are many “legitimate” activities that could be confused with texting including dialing a phone number or cleaning a stain off one’s own shirt. Remember, an officer has to convince a judge beyond a reasonable doubt that the motorist was actually texting. Thus, the officer’s sworn testimony that he could tell the difference between texting and other legitimate activities is necessary for a conviction. When this point was presented to city leaders at the July 14 city council meeting, one city leader stated that “the motorist could bring their cell phone records to court to prove their innocence.” The city leader become silent when I pointed out that it was the city’s obligation to establish guilt and not the motorist’s obligation to prove their innocence.

3. They really did say that.

a. “What’s wrong with [having] duplicative laws?” This is what one city leader asked me. Where do I begin to answer that question? I could respond by stating that passing duplicative laws violates your campaign pledge to fight unnecessary government growth. Or, I could respond by saying that by focusing your efforts on the replication of a law that is not currently enforced, you simply add to the problem by hiding behind a fanfare appearance that you actually did something to fix the problem.

b. “The reckless driving law is just too broad for me.” This is what another city leader told me. Without explanation, the city leaders have not even tried to prosecute those who text and drive with any law. The reckless driving law has been in effect and remained unchanged for at least 20 years. Convictions are made regularly under this law. As written, this statute is broad enough to cover all distracted driving, not just texting and driving. Since the publication of my first article, many attorneys have contacted me and told me that they agree with my interpretation of this law. To date, not one attorney has contacted me and told me that I am wrong on this point.

c. “The $500 fine will sure stop me from texting while driving.” This comment was made by the same city leader at the July 14 city council meeting who told me that the motorists should bring their cell phone records to prove their innocence. Not only does this comment reflect the Microwave Generation mentality, it also reflects the “one solution” mentality of our city leaders. Not once has any city leader mentioned anything about any non-governmental solutions to go in concert with their new law. And, I remind you that there is at least one study that concludes that texting bans don’t reduce crashes.

But, here is the real head scratcher. The government is about to create a new revenue stream and there is no accountability of what will be done (or even might be done) with that new revenue. Will it go to reducing everyone’s tax burden? Nah, that is too obvious.

Solutions: At Monday night’s city, I suggested two solutions for the distracted driving problem. First, I suggested that city leaders direct the chief of police to start enforcing the reckless driving law when it comes to texting and driving. Second, I suggested that we need to increase the education about the dangers of distracted driving. I am not real big on public/private partnerships, but this is one area that the government and private industry can work together. There are already many wonderful local organizations that our local leaders can work with.

However, after reflecting on Monday night’s meeting, I would also add a third solution. For certain traffic law violations, like reckless driving, red light and stop sign violations, I would require mandatory, in-person court appearances for the violator. Even if the motorist planned to plead guilty, I would require that they appear before a judge and make that guilty plea in person. Additionally, in lieu of having to pay a fine, I would give the judge discretion to order those found guilty of these offenses to do three hours of trash pickup detail.

I add these suggestions because in my experience, many people and their employers treat the monetary costs of traffic violations as a cost of doing business. However, what people do value more than money is their time. Some will do anything and everything possible to get out of a government function that requires their physical presence (like jury duty), but they will pay a fine. The advantage to giving the judge this additional sentencing option is that everyone who is charged and found guilty of these kinds of offenses will be equally impacted – rich and poor.

Conclusion: I really think my frustrations about this big rush to pass this new law are multifaceted. But it can be summed up in that I am frustrated that some believe that the government can instantly solve certain problems of the community just by passing a new law. I am frustrated with city leaders who are only focusing on one part of the distracted driving problem. I am also frustrated when city leaders make great fanfare of all that they have done for a very specific problem by only creating a new law. I am further irritated when I see the many expressions of hypocrisy by the city leaders who promised smaller government in their campaigns, yet they pass revenue making laws without accountability of spending.

There is little doubt in my mind that this anti-texting bill will pass unanimously. However, when political leaders pass new, unnecessary laws without any additional plan to deal with the problems, they exemplify poor governance.

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