A Terrible Idea All Around

It seems that ABATE of Arizona, which I would like to think of as a rights organization, has decided to support a statewide law against texting while driving. The proposed statute would create penalties of $100.00 for a first offense and $300.00 for second and subsequent offenses, and fines of $500.00 where there is an accident and $10,000.00 where death results from the accident. The proposed law is not only pointless and maybe even dangerous, but it is more or less guaranteed to further erode our rights. It is not the sort of thing any purportedly freedom-loving organization should ever support.

First, as others have noted before me, we have plenty of laws to deal with the problem already. If your texting results in even the slightest issue with your driving, we have more civil laws than we could ever want. Cross a single marked line once? A cop will use A.R.S. § 28-729 to stop you for that. Violate someone’s right of way? Article 9 of Title 28 of the Arizona Revised Statutes creates multiple offenses that might apply. I could go on all day. Because we already have more laws than need to punish even the slightest driving problems, the new law would only serve to either punish people who are driving perfectly or add a pointless extra non-moving charge where there’s already a more serious traffic violation. Should ABATE really waste its time with meaningless gestures?

On top of that, if you cause any sort of accident, or in some cases even if you don’t, you can already be charged with a criminal offense. I see these cases all the time. Arizona’s Endangerment statute, A.R.S. § 13-1201, prohibits “recklessly endangering another person with a substantial risk of imminent death or physical injury.” It is a class 6 felony where there’s a substantial risk of imminent death, and it’s a class 1 misdemeanor otherwise. The term “recklessly” just means that a person is aware of and consciously disregards a substantial and unjustifiable risk. It is not a stretch at all to say that someone who is aware of the risk of texting while driving, something not so easy to argue against given the billboards and other media campaigns everywhere cautioning against driving while texting, is acting recklessly if he or she does it anyway.

Because a car is a dangerous instrument, I’ve even see these cases charged as dangerous felonies requiring 1.5 to 3 years in prison. When someone is hurt, I’ve seen it charged as class 3 dangerous felony aggravated assault with a mandatory 5 to 15 years in prison. When someone dies, it can be charged as manslaughter, a class 2 dangerous felony with a mandatory 7 to 21 years in prison. With that much already on the line, what difference will a new law with some silly little fines make?

Another problem involves the unintended consequences of the ban. Researchers at the Highway Loss Data Institute looked at the effect of texting bans in California, Louisiana, Minnesota and Washington, and they found that crash rates rose in three of the states after bans were enacted. I bet the same thing would happen here. Now, people can text with their phone held up in front of them, thus better keeping their eyes on the road. With a ban, they will hide their phones in their laps or in other awkward positions. They may end up more distracted than ever. Whether that’s why such bans don’t work or whether there’s some other reason doesn’t really matter, though; what matters is that not only is the law useless, but it could actually be harmful. Is that really the sort of thing ABATE should rush to support?

The other problem, one that will be all but guaranteed, will be the effect of the law on our rights. I see nothing in the language of the law making it a secondary violation, one that can’t serve as the sole basis for a traffic stop. Look at things like the seatbelt law, which says a cop “shall not stop or issue a citation to a person operating a motor vehicle on a highway in this state for a violation of this section unless the peace officer has reasonable cause to believe there is another alleged violation of a motor vehicle law of this state.” I see no such language in the texting bill, so it will just give cops a new reason to stop people. Indeed, I imagine it will give them a blanket excuse to get away with an otherwise illegal stop every time they later find a phone in the car.

Furthermore, fighting these cases will be difficult for the innocent. Expect wrongful citations and convictions to be rampant, as it will invariably be the driver’s word against the cop’s in most cases. Most people have phones, so the cops will just describe seeing the phone the person actually had when they later write down what they claim happened. Will they begin searching through people’s phones at traffic stops now? Will they start getting search warrants for text logs to prove their cases? If our ever-shrinking rights begin getting in the way of easy convictions, expect the courts to start taking away even more of them.

Writing this, I can’t help but think of the image prominently displayed on ABATE of Arizona materials, including its homepage, that says “Dedicated to Freedom of the Road.” ABATE’s support of a texting ban tells me that’s no longer true. Maybe ABATE is dedicated to bikers’ freedom, but clearly not anyone else’s. Maybe it’s just another special interest group trying to be relevant. Either way, the fact that the organization would rush to support a redundant and rights-eroding law that may make the situation worse is very concerning to me.