Should Distracted Driving by Electronics Be Treated Like a DUI?

Should Distracted Driving by Electronics Be Treated Like a DUI?

Driving Under the Influence of Electronics Act is a new proposed law in Olympia to combat distracted driving and treat it like a DUI. Is it feasible and where do you draw the line as car technology advances?


Episode Transcript

Dillon
Well, it's been in the news lately that they want to change distracted driving laws, or I guess have new distracted driving laws in WA state here. That would essentially equate using electronic devices while you're driving, which is distracted driving now, would treat it like a DUI. In fact, they're calling it Driving Under the Influence of Electronics Act.

Welcome to The Legal Docket, by the way. Dillon Honcoop here along with local driving under the influence of alcohol and drugs expert, not that you do it yourself, but you defend those kinds of cases, Jonathan Rands in-studio this morning. I'm thinking, gosh, are we kind of confusing two totally different things? I guess some people have said, and we've talked about distracted driving before. And you're very familiar with traffic laws in general. And some people have said, using a cell phone while driving, you have the reaction time of someone who's under the influence of booze.

Jonathan
Actually, the statistics indicate somebody who is operating a cell phone and driving is the equivalent of about a 0.04 or a 0.06 alcohol concentration in their body. And that's, I guess it's hard to quantify how they come to that, but it really comes down to really reaction time. We're dealing with distracted driving or really, I guess the better term would be impaired driving, but not in the traditional sense of being impaired by drugs or alcohol. Anything that impairs your ability to pay attention, anything that impairs your ability to multi-task, if you will, or divide your attention is dangerous. Whether that's kids screaming in the back seat, shaving with an electronic razor, reaching over to sort through your CD collection, or if it's a really old car, your cassette collection. 

So it's not new, let's put it that way. What's new is that everybody does something in this age of electronics that is fairly dangerous. There are lots of campaigns about texting and driving and I think the Nation Highway Safety Administration has some very interesting statistics in terms of how many crashes are contributed to, or completely as a result of distracted driving. And I think when we use the term distracted driving, we now only reference, or are only thinking about cell phone use, but since the age of cars, we've always had an issue of being distracted. It's just as we get more technologically advanced, there's more things for us to be distracted by while we're driving.

So anything that distracts you or distracts from the ability to operate a motor vehicle by dividing your attention further than it already is while you're driving, is a problem. It's not a surprise to me that we're seeing after 10 years — that's a bit of a surprise — but it's not a surprise to me that we're seeing legislation in its infancy right now to try to toughen up and treat it as serious as it is. I mean if we go all the way back to the issue of driving under the influence of alcohol or drugs, it's motorist's safety. It's saving lives. 

So it's not a surprise to me that they're trying to also make a parallel or a companion charge, if you will, regarding safety. 

Dillon
And I haven't looked a the specific, what are they going to call this again, the Driving Under the Influence of Electronics Act. So what would that be, DUI-E, [laughing] if we call it that. Making that an important thing is one thing, but treating it like a DUI to me is entirely another thing. And we know from you and I talking about all the different facets of DUI law and defense, it's very complex. And it's very serious. And it has a lot of stigmas and things even beyond what the law says. 

Now if group the use of electronics into that, I don't know, isn't that opening a can of worms that maybe we don't need to open? 

Jonathan
Yes. My bigger concern with it is enforcement. Because how do you know? So first of all in Washington, we have Article 1 Section 7 of WA State Constitution. And Article 1 Section 7 says that we're going to give a person more privacy. And the right to privacy is the United States Constitution 4th Amendment. So in Washington, the only way you can have law enforcement contact outside of a social contact or outside of a community caretaking contact, meaning the way that they would typically enforce this new law, is to have probable cause to believe it happened.

So if you think about a traffic violation where you're driving down the road and you don't use your signal, or you're speeding, or your taillight is out, or you license plate tags are defective, those are all observations that an officer can make to believe that there's a possibility that the person has committed a traffic infraction. And that gives them the authority to pull the person over. And then while they're doing that investigation for that infraction, it leads to something else in plain view, such as odor of alcohol, bloodshot watery eyes. That's how that progresses. So my question is, how do you enforce something like this while balancing or respecting people's constitutional rights.

You can't just pull people over on suspicion of most people have a cell phone and somebody's probably using it. Or because you see the vehicle may be weaving down the road or driving in a way that looks like the person's not paying attention. That's how I could see it potentially being a stop, where an officer would see a vehicle being driving any time of the day, but somewhere erratically. And then the question becomes, is that enough to pull the vehicle over to believe, based on training and experience which is what they'd have to draw upon, that the person may very well be operating a cell phone. And you don't have it in your hand or if the officer doesn't see you, I mean I can think of people going down the road holding up their phone looking at it, that would be an indication that a person might be doing something, and that would be one way to enforce it. But other than that, it's all admissions.

Dillon
And that's what I'm wondering. People already get tickets right now for distracted driving, for driving and talking on their cellphone, for driving and texting. These kinds of things are already traffic infractions. So how do they catch those people?

Jonathan
Well, the last cell phone ticket I got I wasn't using my hands-free device [laughing].

Dillon
Oh! Truth. Truth comes out.

Jonathan
It's fairly easy to see when somebody has their hand up to their ear in broad daylight hours. You can tell. You can see when somebody has a device. You can also see when a person's holding it away; that's always the, you know — when you see a police office and you're on your phone and all of a sudden you just flip the phone away from you and start pretending that you're holding it away from you. Because you can still use speaker phone. But if you're too late in that and the lights come on, then the officer just has to indicate he saw a device being held to the ear. And that's the standard of proof for that.

Dillon
And even if you're on speakerphone, from a distance can you tell if someone's on a speakerphone talking or are they texting — 

Jonathan
Or looking

Dillon
— or dialing numbers, reading the screen?

Jonathan
Well, I also noticed, I think when I looked closer at this, the dialing of a phone wasn't going to be criminalized, which is interesting.

Dillon
It's as dangerous as typing a text.

Jonathan
Right.

Dillon
With ten digits anyway.

Jonathan
Or more. I mean we multi-task so much driving down the road making a telephone call, paying a bill maybe on the phone. Credit card in one hand, keypad in the other. There's just so much ambiguity here, so many possibilities, that it just kind of boggles the mind.

Dillon
They talk about this with all the new gadgetry on the dash of newer vehicles as well. And in the spirit of openness and transparency, I almost rear-ended someone the other day. I didn't! But I almost did. Not because of my cell phone. Not because of texting while driving, but just because I was adjusting the heat.

[laughing]

You know. You look down — oh my gosh! the person in front of the person in front of me decided to make a left turn and hammered on the breaks. So isn't it all really the same in some ways? And would I get in trouble then if I was adjusting the heat in my car? I know many many people who've gotten in accidents changing the CD in their CD player or changing the radio station. I don't know why they wouldn't just leave it on KGMI. You shouldn't ever need to change your radio, right?

Jonathan
[laughing]

Dillon
I mean, that's a senseless crash, in my opinion. But how is it different then?

Jonathan
More importantly, where do you draw the line. Let's say we get a catchall phrase at the end of this — or any other device that distracts a driver. I could see —

Dillon
That could be my sun visor.

Jonathan
Yeah, exactly. 

Dillon
That's a device, isn't it?

Jonathan
It looks as though we're moving towards somewhat of a nanny state, meaning that do we really want to criminalize or make everything a possible dangerous action and infraction or a crime? Because just like you say, the person who has a car accident, a minor fender bender, and admits to the officer when the rear-end is being investigated or the lamp post is being investigated. What does the person say? Oh, I adjusted my radio, or I looked away for a moment. Potentially you already an inattentive driving citation for that. But is this going to piggyback that? or are people going to have to be aware of what they say during a contact with law enforcement. Because one of the only ways I can see enforcing this law is if it happens after the fact. meaning a person was using their cell phone but the officer didn't see it, but the person makes the admission that during the investigation — the officer asks what happened. "Well, I was driving along and I looked down briefly." "Did you look at your cell phone?" "Yeah, I was looking at my cell phone."

So there's an admission, which could possibly be the basis of it. Otherwise, they can't just look at your cell phone unless you give it to them. United States Supreme Court in California vs Reily at the beginning of last year issued a decision that said a cell phone inspection requires a warrant. So if you really want to take this new law to the extreme and law enforcement is investigating, let's say a serious accident. And a person has a cell phone in their possession and they won't make any admissions, but for some reason, they want to determine if the accident was caused by cell phone use and want to look at the last entry or when the last text was received. That would require application of a search warrant in order to do that kind of stuff.

Dillon
That's what I was speculating about, I mentioned this just a couple days ago on the air on my weekday show. Well yeah, you'd need a warrant to be able to search, that would I guess potentially give you an answer. Ah ha, search warrant turns up, you sent a text 1m17s ago and that's while your vehicle was still in operation, so bingo.

Jonathan
Or law enforcement's on scene, suspects that the accident may have been contributed to by a person not paying attention. And if this is now a crime and the officer begins investigating a crime, do you have to Mirandize that person in order to make sure that they know what their rights are? That you have the right to remain silent because anything you say can and will be used against you. And then if you're not Mirandized and they use that single statement, yeah, I looked down at my phone or I sent a text, now that's really going to be the only information against you, but is it appropriate under that scenario which is just an investigation when you should have been advised that you're suspected of some sort of now-crime instead of just an infraction.

Dillon
Local DUI defense attorney Jonathan Rands in-studio with us this morning here on The Legal Docket. I'm Dillon Honcoop. We're talking about this possible state law. It's a proposed law down in Olympia right now called the Driving Under the Influence of Electronics Act. And what would that mean if we started treating distracted driving by way of electronic devices, AKA cell phones, etc if we treated them the same as DUI. Well, that would make it a lot more serious, but would that necessarily be a good thing or are there some really dangerous pitfalls here. And I think doing this would have some really big problems.

I want to get into more of the issues here. We do have to take a quick time out. If you want reach Jonathan, by the way, the phone number for his practice in Fairhaven is (360) 306-8136. I'll repeat that in just a moment. His website, if you'd like to check that out, and actually there's lots of content to consume there. Of course, archives of this show as well as a lot of blog posts on a ton of different DUI-related topics that you can study up on there jrandslaw.com. Check that out. And again that phone number (360) 306-8136.

Stay with us for more next here on The Legal Docket.

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Dillon
We talk a lot about driving under the influence in the realm of alcohol as well as drugs and things like that. But what about electronics? We're tackling this morning here on the Legal Docket the new proposal down in Olympia to start treating driving while texting or doing something on a smartphone or electronic device like a DUI. Driving Under the Influence of Electronics Act is what the proposal is called. Jonathan Rands in-studio, local DUI defense attorney. We started into some of the potential problems with this. I've got to ask you as we come back here on the show how would you defend something like this? That's got to be going through your mind as a defense attorney. I would think there would be a ton of issues here.

Jonathan
Well, that's why I said before the break if you take the law potentially to the extreme the way to defend something like that is to determine at what point does the investigation turn from a civil infraction to something more serious where a person is now being investigated for a crime. And at what level the crime, it doesn't really matter if it's elevated to a misdemeanor, it's still the same. A crime is a crime whether it's a misdemeanor or a felony.

So the circumstances are really going to dictate in terms of how a defense would be put together because it would all be dictated by how the investigation is put together. Every defense is different for every single case, but also the nature of the information the police have that is what the basis of what the charge is, is where we look at in terms of the defense that we put together. And since we don't know the nature of the law yet, it's kind of a hard question to answer. But hypothetically, I go back to what information did the police have at what time and what are they investigating. Are they investigating a mere accident which then turns at a certain point to an investigation for something more serious than that. And of course, that's when we have to balance the person's rights and to be informed of what their rights are. 

But the bigger concern for me is why are we only singling out, if we're going to do this or going down this road, and I say we because our legislators are agents of the people. The population voted them in.

Dillon
At least they're supposed to be.

Jonathan
Correct. So if that's the case, are we behind this as a population? Why wouldn't we, or why isn't there more focus on more technologically advanced cars? Like you say, there's a ton of things in a vehicle that come straight from the factory right now, that are more distracting than a cell phone or can be. I don't know if it's the case right now, but GM makes this car where they have 4G built into it, so they've got wireless coming from the car. I haven't sat down and looked at one, but I'm guessing that if you have wireless as a car hotspot, then ultimately your console is probably going to have a browser. And you know how big these screens are on these cars now —

Dillon
In the middle of the dash.

Jonathan
So if that becomes standard operating equipment, who cares about the handheld cell phone law, right? 

Dillon
No kidding.

Jonathan
I mean, you could basically tether your phone, but I could simply see that you've got this LDC screen in front of you that has your heater and has your CD player and everything else, like my wife's does for the Dodge Journey that she has. And that distracts me all the time. Mostly because I'm not familiar with it because I don't drive the car very often. And when I'm looking to do the heat or something, you get focused on it.

Dillon
[laughing] Yeah.

Jonathan
And then you look up, just like you did, and oh man, there's a car in front of me.

Dillon
How in the heck does this thing work?

Jonathan
So let's say that you create this law about cell phones, but technology in the car goes in a different direction, then the law that you just created is kind of useless because people will be like, well, I'm not going to use my cell phone, but I'm going to use my dashboard just the same. Distracted driving is distracted driving, and I don't know that we should be trying to enforce something that is really just common sense. If you want to be a safe driver, you keep your eyes on the road and you don't distract yourself, whether it be with shaving, with kids, with whatever you're doing. 

Dillon
Shaving. Yes, it does happen. People have been putting on makeup and all kinds of things behind the wheel. I just wonder if someone is convicted of driving under the influence of electronics, then —

Jonathan
Well, I don't know that you could actually be under the influence. I think that it would have to be a law that creates an affected by. Meaning your ability to operate a motor vehicle was affected by electronic usage. Because under the influence sounds to me, and I believe it needs to be accurate in the law like you've consumed it and you're under the influence of it, right.

Dillon
And that has legal implications as far as the meaning of the word. What does that word mean. It has a legal definition.

Jonathan
Because the DUI statute has two prongs. One is under the influence as defined by being above a 0.08. And it also says or being affected by alcohol consumption such that your ability to operate a motor vehicle is affected by that consumption. So I see this, if this law does make it though, and it takes three or four cracks before they actually get something through, and so we might see various incarnations of this. But I see it ultimately winding up as something that would have to affect the person's ability. And then that's the burden of proof. Did it affect a person's ability or was it something else? 

Dillon
I'm wondering if you have this in your past and you have some sort of ignition interlock device that proves that you don't have a cell phone on you before you're allowed to drive. [laughing]

Jonathan Rands, local DUI defense attorney. (360) 306-8136 that's the phone number for his offices in Fairhaven. That's where he practices. The corner of 12th and Old Fairhaven Parkway. Cool brick building there, kitty corner to where he used to be, but same intersection.

Jonathan
That's why I stayed still. We moved, but we're still almost at the same spot.

Dillon
Again (360) 306-8136. The website is jrandslaw.com check it out online. Jonathan, have a great weekend.


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