Still Texting and Driving? Think Again.

wenrich-picture

By: Sarah Wenrich,

Each state is able to create its own laws regarding cellphone use for drivers of motor vehicles, but 46 out of the 50 states plus Washington D.C. have prohibited the act of “texting while driving” for all drivers other than those in emergency vehicles. [1] As texting while driving has been shown to slow a driver’s reaction time as much as drinking four beers [2] and is also the cause of one out of every four accidents[3], this ban should come as no surprise.

In New York (as well as fourteen other states and the District of Columbia), there is also a statute that bans using hand held phone while driving, including talking on a hand held device. [4] This law extends to the use of a cell phone while stopped at a red light or in a tollbooth.[5] However, this behavior is still difficult for officers to observe, leaving the law enforced less often then it should be. [6] To combat this, a bill has been introduced in the New York Senate that would allow for the use of a device, currently being referred to as a “textalyzer,” to analyze a driver’s phone either when the driver is pulled over and suspected of using a phone while driving or after an accident occurs. [7] In pushing for this law, New York legislators are pursuing a theory of implied consent such that when you receive your driver’s license, you are implicitly giving consent to be subjected to a future textalyzer examination. [8]

The textalyzer would connect to the cell phone and relay to officers whether the cell phone was in use at the time in question. [9] Advocates for the use of the textalyzer address privacy concerns with this type of technology by arguing that it would not give the officers any access to personal data from the phone.[10] On the other side of the argument, people opposed to this technological probe into a person’s device express concern over the fact that a driver may not be able to recognize when more information is being passed onto law enforcement officers without their knowledge.[11] While it has not yet been voted on in legislative session, it could have effects that reach far beyond the borders of New York.

The state of Virginia is another state that prohibits texting while driving for drivers of any age.[12] The current law in Virginia prohibits drivers from “manually [entering] multiple letters or text in the device as a means of communicating with another person” [13] and from “[reading] any email or text message transmitted to the device or stored within the device.” [14] However, this law does not apply when the vehicle is legally stopped, allowing people at stoplights to text and email behind the wheel without penalty. [15] Additionally, because this law allows the use of a hand held phone for talking or GPS purposes, enforcement of this law is incredibly difficult. [16] If a police officer sees someone texting while driving, the driver can avoid a citation by either telling the officer he was not on the phone at all or that he was using it for a legal purpose.[17] If New York passes the use of the textalyzer technology, it could be an appealing option for police officers in Virginia to effectively enforce the ban on texting and driving.

While it is very challenging to enact new highway safety laws in Virginia,[18] this technology would not ban any new act by a driver; it would simply allow for the enforcement of the Virginia law already in place that bans texting and driving. The final textalyzer device has not yet been produced, but the CEO of Cellebrite Technology (the company that would produce the textalyzer) says that it will not be technologically challenging to produce.[19] Because the textalyzer technology could have the ability to analyze different applications and the activity in any or all of those applications,[20] slightly different versions could be adopted on a state-to-state basis in order to accommodate each state’s law.

The textalyzer may seem like a crazy and potentially invasive tactic for cracking down on law-breakers, but when texting and driving causes 11 teen deaths per day,[21] it may be what it takes to make people second guess grabbing their phone from behind the wheel. Unfortunately, if knowing that texting while driving causes 1.6 million accidents and 330,000 injuries per year[22] doesn’t stop a driver from texting, it’s unlikely that increased enforcement of the current law will do the trick.

 

 

[1] See Distracted Driving Laws, Governors Highway Safety Association, http://www.ghsa.org/html/stateinfo/laws/cellphone_laws.html (last visited October 30, 2016).

[2] See Texting and Driving Statistics, Texting and Driving Safety, http://www.textinganddrivingsafety.com/texting-and-driving-stats (last visited Nov. 3, 2016).

[3] See Cell Phone Use While Driving, Edgar Snyder & Associates, https://www.edgarsnyder.com/car-accident/cause-of-accident/cell-phone/cell-phone-statistics.html (last visited Nov. 2, 2016).

[4] See Distracted Driving Laws, supra note 1.

[5] See Matt Richtel, Texting and Driving? Watch Out for the Textalyzer, The New York Times (Apr. 27, 2016), http://www.nytimes.com/2016/04/28/science/driving-texting-safety-textalyzer.html?_r=0.

[6] See NEW YORK STATE’S MOBILE PHONE and PORTABLE ELECTRONIC DEVICE LAWS, Governor’s Traffic Safety Committee, http://safeny.ny.gov/phon-ndx.htm (last visited Oct. 30, 2016).

[7] See Karen Turner, A proposed ‘textalyzer’ bill might give cops the right to access your cellphone, The Washington Post (Apr. 13, 2016), https://www.washingtonpost.com/news/the-switch/wp/2016/04/13/a-proposed-textalyzer-bill-might-give-cops-the-right-to-access-your-cellphone/.

[8] See Richtel, supra note 5.

[9] Id.

[10] See Bruce Brown, Using your phone while driving may be stupider than ever, Digital Trends (Apr. 12, 2016, 5:38 AM), http://www.digitaltrends.com/mobile/cellebrite-textalyzer-driving-mobile-test-news/.

[11] See Turner, supra note 7.

[12] See Distracted Driving Laws, supra note 1.

[13] See Va. Code Ann. § 46.2-1078.1(A)(1) (2016).

[14] See Id at (A)(2).

[15] See What is the law on Texting While Driving in Virginia and What Does it Really Mean?, McGlone Law Firm, P.C., http://www.mcglonelaw.com/faqs/what-is-the-driving-while-texting-dwt-law-in-virginia-.cfm (last visited Oct. 30, 2016).

[16] Id.

[17] See Ashley Halsey III, Virginia’s new texting-while-driving law contains loophole, The Washington Post (Apr. 11, 2013), https://www.washingtonpost.com/local/trafficandcommuting/virginias-new-texting-while-driving-law-contains-loophole/2013/04/10/63bb64a2-a05a-11e2-82bc-511538ae90a4_story.html.

[18] Id.

[19] See Richtel, supra note 5.

[20] See Brown, supra note 10.

[21] See Texting and Driving Statistics, supra note 2.

[22] Id.

 

Photo Source:

http://www.moore-firm.com/wp-content/uploads/2015/03/Texting-While-Driving-Ban-Florida.jpg

Comments are closed