drvN yl txtN: Susan Savage and Schenectady’s Text Messaging Ban

Robert Magee, Staff Writer, RMagee@albanylaw.edu

      Schenectady County Chairwoman, Susan E. Savage, recently announced her intent to align three other New York counties to ban the practice of text messaging while driving.1  Ms. Savage’s compatriots aren’t confined to New York; California recently enacted a similar state-wide ban.2

     Through a certain lens, this might appear as the beginning of the slippery slope anti-cell-phone-ban advocates warned about.3  This slide might seem all the more precipitous when taking into account a ban on the use of iPods or Blackberry’s proposed by State Senator Carl Kreuger, representing the 27th District in Brooklyn.4

     These sorts of bans, especially as they are enacted by lawmakers in different New York counties and even districts, highlight two considerations that must come into play when governing any defined geographic area with different people leading different lives in different environments.   Perhaps nowhere on Earth is this more important to account for than in New York State, where a half hour drive up route 684 will take you from places like White Plains5 to North Castle.6  The first consideration is the risk of unnecessary overlap in lawmaking posed by high profile, headline-grabbing legislation, and the second is the striking disparity in efficacy between laws from different kinds of political environments.

     Regarding the first consideration, we can point to New York’s cell phone ban.  Passed in 2001, it prohibits, ultimately, drivers from placing phones near their ears while driving, but we shouldn’t take the law out of context.  Vehicle & Traffic Law (V&TL) § 1225-c states: 

2. (a) Except as otherwise provided in this section, no person shall operate a motor vehicle upon a public highway while using a mobile telephone to engage in a call while such vehicle is in motion.

(b) An operator of a motor vehicle who holds a mobile telephone to, or in the immediate proximity of his or her ear while such vehicle is in motion is presumed to be engaging in a call within the meaning of this section. The presumption established by this subdivision is rebuttable by evidence tending to show that the operator was not engaged in a call.7 

     So we see that technically the ban applies to actual cell phone use, but the effect of the rebuttable presumption clearly renders the cell-phone-to-ear proximity controlling since it’s hard to imagine very many alleged violators (innocent or otherwise) would bother to muster the needed evidence to escape the “fine of not more than one hundred dollars.”8  Further, the law is tailored only to prevent drivers from talking into, or listening to, their cell phones and not from engaging, deactivating, or performing some other function on the phone.9 

     Within the breadth of possible things to do with cell phones (a list which has undoubtedly grown beyond even the comprehension of our legislators circa 2001) what is probably the least distracting, the act of talking, the single act within that range of uses performed by humans for tens of thousands of years, is the only one prohibited.10  Simply put, the law fails to address the legitimate threats posed by the distraction of electronics operation when coupled with automobile use.11

     This threat isn’t limited to drivers.  In Brooklyn a 23-year-old man was focused on his iPod when he stepped into the path of a commuter bus and killed thereby.12  In San Leandro, Californian a man “apparently absorbed in a cell phone conversation was struck and killed by a train.”13  These sorts of incidents ultimately exhibit acute carelessness, the sort of carelessness we might associate with drunkenness or drug use. Coupled with the myriad stories of cell phone related car accidents, and considered against the proliferation of increasingly complicated and ever-cheaper handheld electronic devices,14 this problem has become a unique, new, and growing threat to public health and safety. It cannot be solved by piecemeal legislation targeted at specific distractions.  

     The arguments on either side of this debate are worthy of a hearing.  Cell phone use while driving, for example, can increase productivity for New York workers and help its families.  It can reduce instances of lost drivers who clog roadways, pollute, and by their distraction pose a safety hazard to other drivers.  Further, the promotion of cell phone use generally will create jobs in the state associated with construction and maintenance of the cell phone infrastructure. For handheld electronics generally, there is something to be said for the right a person has to use things like mp3 players, cell phones or whatever other devices that may hit the market in coming years as they go about their day. On the other hand, distracted drivers and pedestrians are not typically safe ones and this exacts its own punishment in increased accidents, higher insurance rates, and in the worst cases, death. 

     However, the balance tips as you move from urban to rural settings and as you move across the stages of electronics use.  For example, you are in less danger texting a friend as you cross the street in West Leyden than you are talking on cell phone as you try and park your car in White Plains.  Further, a driver making a call while taking the Northway through the Adirondacks poses no threat at all15 compared to a person sending an email on her Blackberry as she traverses Times Square.  As such, a certain level of municipal flexibility is justified, even desirable when considering the aforementioned benefits of small electronics use.  Ms. Savage’s effort provides a prime example of why.  She has identified a safety problem within her capacity as a local lawmaker and she should, pending the due democratic processes, be afforded the leeway to address it. This is exactly the sort of thing local law makers ought to do.

     New York’s cell phone ban, as it was originally proposed, contained a provision allowing municipalities to impose tougher restrictions than the state-wide ban provided.  This was a good start, but it was stricken and the law was left ambiguous, which is why the legality of Ms. Savage’s proposed ban sits in limbo.16  The ambiguity as to whether local ordinances like Ms. Savage’s will be preempted has been encountered all over the country.17

     Thus we see two deficiencies in New York’s cell phone ban as it currently exists: (1) it fails to prohibit the truly distracting uses of cell phones (e.g. texting, dialing phone numbers, etc.), and (2) it fails to acknowledge that blanket, state-wide regulation doesn’t make sense.  Yet further thought bears out two further failings.

     New York’s cellphone ban hasn’t proven adaptable to expanding uses of cell phones and other devices. In 2001 the BlackBerry was still just a two-way pager,18 and though our legislators should not be treated too harshly for failing to foresee just how far the BlackBerry and other devices would come, they can be blamed now for ignoring it.

     Finally, there’s nothing particularly compelling about the threat of distraction posed by cell phones when compared to other distractions, like adjusting the radio, having a dog in the car, or listening to music too loudly.

     With these things in mind, state legislators might consider a two prong approach.  First, they should consider a broader Driving While Distracted statute,19 similar to current drunk driving statutes20, which would be less punitive but would allow police to issue citations to visibly distracted drivers.  The statute should include a more specific grant of authority allowing local legislators like Ms. Savage to enact more stringent regulations to address dangers unique to their municipality.  This should be coupled with a grant of authority to municipalities to institute something similar to disorderly conduct21 or public intoxications citations22 to people actively engaging the function of small electronics as they cross or are about to cross roadways. 

     On the other hand, these bans shouldn’t be allowed to interfere with passive uses of electronics, even in dangerous situations for two reassons.  Things like listening to music or talking on a phone would fall under such passive uses because such passive uses don’t pose a significant safety risk.  People listen to or talk about one thing while doing another. Very often we do all three and without significant risk to others or ourselves.  Further, there are legitimate benefits to be derived from these uses and we shouldn’t allow legislators (local or otherwise) foreclose us from benefiting from them responsibly.

     Like any law, there’s little chance that a law like this would be obeyed uniformly. Its real value would lie in its message-sending potential.  The possibility of legal sanction would serve to reduce the number of distracting activities drivers undertake and would make clear the seriousness of crossing streets without looking both ways.

 Daniel Wood, Eric Schillinger, editors.

____________________________________________________________

1 Lauren Stanforth, County Weighs Driver Text Ban, Albany Times Union, Oct. 24, 2008; Press Release, Schenectady County Legislature, Schenectady County Legislature Chairwoman Susan E. Savage to Introduce Local Law to Ban Text Messaging While Driving (Oct. 23, 2008), available at http://www.schenectadycounty.com/Txt_Message_Ban_-RgX-.pdf.file.

2 Press Release, Governor Arnold Schwarzenegger, Gov. Schwarzenegger Signs Legislation Banning Use of Electronic Text Messaging Devices While Driving (Sept. 24, 2008), available at http://gov.ca.gov/press-release/10608/; Matthew Yi, California Bans Text Messaging While Driving, S.F. Chronicle, Sept. 25, 2008, at B1, available at http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/09/24/BAQT134GFB.DTL.  A copy of the law can be viewed at http://info.sen.ca.gov/pub/07-08/bill/sen/sb_0001-0050/sb_28_bill_20080924_chaptered.html.

3 Editorial, Zealots’ Bans Are a Slippery Slope, Valley Morning Star, Jan. 26, 2007, available at http://www.accessmylibrary.com/coms2/summary_0286-29388232_ITM.

4 Caroline McCarthy, N.Y. Lawmaker Hopes to Ban iPod Use in Crosswalks, CNET News, Feb. 7, 2007, http://news.cnet.com/2100-1047_3-6157109.html; Press Release, Senator Carl Kruger, Sen. Carl Kruger Seeks to Ban ‘iPod Oblivion’ to Curb Dangers to Pedestrians (Sept. 1, 2006), available at http://www.nyssenate27.com/27/news/07-02-05/sen_carl_kruger_seeks_to_ban_ipod_oblivion_to_curb_dangers_to_pedestrians.aspx.  The bill, S2698, which proposes a $100 fine on violators, would only apply in cities of populations over one million.  Immediately after Sen. Kruger introduced the bill, the State Senate referred it to the Senate Transportation Committee, where it remains as of the writing of this article.  See New York State Legislature, Legislative Session Information for Year 2008, http://public.leginfo.state.ny.us/menuf.cgi (enter S2698 into search window and click “Status” button) (last visited Oct. 28, 2008).

5 The Mayor’s office of White Plains estimates the city’s daytime population at 250,000. Fernanda Santos, Crimes in White Plains Decline to Record Lows, N.Y. Times, Jan. 25, 2008, at B6.

6 The U.S. Census Bureau puts North Castle’s population at a more manageable 10,849.  U.S. Census Bureau, American Fact Finder, http://factfinder.census.gov/ (enter “North Castle” into the “Fact Sheet” search window, choose “New York,” click “GO.”) (last visited Oct. 28, 2008).

7 N.Y. Vehicle & Traffic Law § 1225-c (2) (McKinney 2001).

8 Id. § 1225-c(4).

9 Id. § 1225-c(1)(f).

10 This was a concession to those who had grown accustomed to using cell phones while driving in years leading up to the ban.  They could still talk, they just had to use headsets.

11 It’s worthwhile to note that there is authority to suggest that talking on your cell phone while driving in parking lot (with it’s accoutrement dangers and distractions) is okay. People v. Moore, 765 N.Y.S.2d 218 (N.Y. Just. Ct. Tompkins County 2003).

12 McCarthy, supra note 4.

13 Steve Rubenstein, Man Talking on Cell Phone Killed by Train in San Leandro, San Francisco Chronicle, available at http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2007/12/06/BA3NTOVO7.DTL.

14 Jesse A. Cripps, Jr., Dialing While Driving: The Battle Over Cell Phone Use on America’s Roadways, 37 Gonz. L. Rev. 89, 91 (2001/2002).

15 This is, of course, relatively speaking.  The seeming tranquility of a drive upstate can make the unexpected all the more so, which can mean disaster when, for example, upstate wildlife wanders into the road. See , e.g.,  Azell Murphy Cavaan, More Moose on the Loose; Road Kill Totals Show More Wild Animals Moving In, Boston Herald , July 4, 1999, at 1 (noting that moose-related car crashes had claimed 7 lives in the first six months of 1999).

16 Stanforth, supra note 1.

17 Cripps, Jr., supra note 13, at 118. 

18 BB Geeks, The History of the Blackberry, http://www.bbgeeks.com/blackberry-guides/the-history-of-the-blackberry-88296/.

19 See Ryan Holeywell, Busted for DWD: Driving While Distracted, USA Today, Jan. 22, 2007, available at http://www.usatoday.com/news/nation/2007-01-22-distracted-drivers_x.htm.

20 N.Y. Vehicle & Traffic Law §§ 1192-1193 (McKinney 2001).

21 N.Y. PENAL LAW § 240.20 (McKinney 2001)

22 Id. § 240.40.

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