DRIVING WHILE TEXTING BAN NEEDS CLARITY

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By: Kevin L. Collins

Cities across the country are implementing new laws against texting while driving. For instance, in San Antonio, Texas, on October 7, 2010 City Council unanimously adopted a ban on texting while driving. The new law went into effect on October 15, 2010, which allows police officers to issue citations and fines up to $200 for offenders, although warnings will be issued for the first 90 days.  The San Antonio ordinance prohibits using a “hand-held mobile communication device to send, read or write a text message, view pictures or written text, whether transmitted by Internet or other electronic means, engage in gaming or any other use of the device, besides dialing telephone numbers or talking to another person, while operating a moving motor vehicle.”

The reasons for the new law are many, and some of the statistics are startling:

According to a report by the National Safety Council, cell phone use leads to about 1.6 million crashes a year, with about 200,000 of those accidents caused by texting and driving. Statistics compiled by the National Highway Traffic Safety Administration concluded that about 28 percent of all crashes in 2008 were caused by drivers in the age group of 18 and 29 who openly admitted to texting while driving. In addition, the 2010 Pew Research Center driving statistics revealed that 47 percent of adults admitted to texting as compared to 34 percent of teenagers, contrary to some who believe that teenagers text more than adults while driving.

Across the nation, 30 states have prohibitions against texting while driving. In the state of Texas, San Antonio is among a growing member of cities to adopt this ban, joining Dallas, Austin, Galveston, and El Paso.  Local leaders who made the city-wide ban possible are now seeking support for a statewide initiative. In fact, State Senator Carlos Uresti has vowed to file a bill during the 2011 Legislature to ban texting while driving statewide.

According to San Antonio Police Chief William McManus, most law-abiding citizens will now stop texting since it has become illegal, making the ordinance a good step forward in making driving safer in the city.

The ordinance should provide the community with significantly safer roadways, but it also may generate a number of situations that may cost citizens time and money. For example, the detection and enforcement issues are going to be very difficult.  How does a law enforcement officer distinguish dialing from texting, particularly when at a distance?

Detection from afar is obviously an issue, as stated, but what about the officer who decides to initiate contact with the citizen based on the belief the texting ordinance was being violated?  What if the phone has been turned off, or the message screen switched to another screen?  The enforcement difficulties are enormous.  Also, assuming a good faith stop has been made by the police officer, he or she may then take note of anything else potentially a crime, and more tickets, or even arrests could result.

The intent of the law is a good one, but the detection and enforcement issues could arguably outweigh its value, and may have the unintended effect of allowing the police to make traffic stops under the pretext of enforcing the texting ordinance.

Kevin L. Collins is a San Antonio Criminal Defense Lawyer, former Prosecutor and is Board Certified in Criminal Law and Juvenile Law by the Texas Board of Legal Specialization. For more information on The Law Offices of Kevin Collins, please visit www.kevincollinslaw.com.

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