Thursday, November 22nd, 2012

Distracted Driving: Cell Phones and the Law

by David J. Loughnane and Suzanne M. Stevens

Summary

Texting or using a cell phone or other electronic device while driving has made news headlines and is on the agenda of lawmakers due to the tragic results of this dangerous activity. This activity behind the wheel, and other forms of “distracted driving,” are annually more deadly and destructive than any terrorist attack in the United States.

Movie theaters have been successful in getting people to turn off their cell phones while sitting through a few hours of entertainment, but so far nothing has convinced drivers to switch off their electronic devices while sitting behind the wheel doing something that requires far more concentration.

Ironically, most drivers readily acknowledge the hazard of using a cell phone while driving. They just feel that they are capable of handling this activity and that the problem is with other drivers. The reality seems to be that until a person you know is hurt, most drivers simply ignore the increased risk of harm from using a cell phone. Moreover, not only do most drivers ignore the increased risk of injury or fatality, they also ignore the laws on texting and cell phone use that have increasingly been put in place across the country.

In this article, we will discuss the increased risk of injury related to cell phone use and other forms of “distracted driving,” some of the laws applicable to use of electronic devices while driving, and what you should do if you’re involved in a vehicular accident where you suspect another driver was paying attention to a cell phone or something else.

Risks of “Distracted Driving”

Distractions during driving were present long before mobile phones, smart phones, iPads and other portable electronic devices were invented. Driver distractions include eating or drinking, grooming, reading a map, looking through a purse or papers, using a radio or MP3 player, picking up something that dropped, refereeing the kids’ behavior, and gawking at events outside the car. “Distraction” is probably a misleading term since it implies something minor or temporary; a moving vehicle can inflict severe and permanent consequences.

What has made the problem both more frequent and worse in outcome is the proliferation of electronic devices, coupled with the notion that sitting behind the wheel of a vehicle is just like sitting anyplace else. Too many people believe it is OK to use this “down time” to multi-task. More recently, “distracted driving” has become synonymous with cell phones. But anything which diverts a driver’s attention is dangerous, no matter how briefly or how necessary it seems at the time.

Some perspective on the extent of the problem comes from the official U.S. government Web site dealing with distracted driving. It states that “18 percent of injury crashes in 2010 were reported as distraction-affected crashes.”[i] Further, the U.S. Centers for Disease Control (CDC) estimates that in 2009 more than 5,400 people died in accidents involving a distracted driver, and nearly a half-million people were injured. What may be almost as noteworthy is that the percentage of distracted driver involvement in fatal accidents has made a very large jump.[ii]

The reasons why cell phone and electronic device use have enormous potential to cause driving injuries and deaths can be easily understood after considering a few facts:

  • A study by Carnegie Mellon’s Center for Cognitive Brain Imaging showed that the type of activity involved in talking on a cell phone or texting “draws mental resources away from the driving and produces deterioration in driving performance, even when it does not require holding or dialing a phone.” The study noted that functioning of the part of the brain dealing with spatial processing decreased by 37 percent while driving and using a cell phone.[iii]
  • A Virginia Tech Transportation Institute study for the federal government showed that sending or receiving a text takes a driver’s eyes from the road for an average of 4.6 seconds. At 55 mph, that equates to driving blind the entire length of a football field. According to the same study, text messaging creates a crash risk 23 times worse than driving while not distracted.[iv]
  • A Monash University study showed that drivers who use hand-held devices are four times more likely to get into crashes serious enough to injure themselves.[v]

The risks for teens and distracted driving are especially serious, according to a 2009 Pew Research study:

  • 82 percent of those ages 16 and 17 have a cell phone, and, of them, more than three-fourths text; 52 percent say they have talked on a cell phone while driving.
  • 48 percent of those between ages 12 and 17 report they have been in a car when the driver was texting; 40 percent say they have been in a car when the driver used a cell phone in a way that put someone in danger.[vi]

Those beyond their teen years are not off the hook when it comes to cell phone use. Though the percentage of cell phone users and the amount of cell phone usage declines as age increases, so does the knowledge and the dexterity to use a cellular device.

Altogether, in the month of June 2011, more than 196 billion text messages were sent or received in the United States – up nearly 50 percent in just two years.[vii] While we may all give ourselves a pass because “everybody does it” or “I’m more careful,” what these and other studies clearly show is that there is a significantly increased risk of harm to you and to others when using a cell phone or electronic device while driving.  Many people now recognize that “distracted driving” has overtaken “drunk driving” as the most destructive and unnecessary behavior on the highway.

Laws Related to Cell Phones, Texting or Use of Other Electronic Devices

In June 2012, U.S. News & World Report commented that 39 states and the District of Columbia ban texting while driving, while 10 states and the District of Columbia ban all handheld cell phone use while driving.[viii] What varies greatly from state to state is the activity that is restricted or prohibited (e.g. texting only; use of hand-held devices), to whom or when and where the law applies (e.g. “novice” drivers only; in special highway zones), and the way various activities or devices are defined.[ix]

Also, several federal regulations apply to certain vehicles and personnel (e.g. railroads, airlines, commercial trucks, bus drivers, and federal employees while on the job). In several states, including Illinois, local municipalities may enact their own, more-restrictive ordinances.[x]

Illinois statutes have made it illegal since January 1, 2010, for anyone – of any age – to drive and “text.”[xi] Section 625 ILCS 5/12-610.2 prohibits not only “composing” an electronic message, but also bans “sending” and “reading” a text, e-mail or instant message, or looking at the Internet.[xii]

As of July 20, 2012, digital photo and video were added to the list of banned objects. Any wireless phone, personal digital assistant or portable computer is included in the definition of an “electronic communications device” covered by this statute, but specifically excluded are navigation or global positioning systems (GPS) that are physically or electronically integrated into the motor vehicle. Also excluded are devices used in hands-free or voice-operated mode.

Section 625 ILCS 5/12-610.1 of the Illinois statutes prohibits all novice drivers under a certain age (whether using a learning permit or having received a full license) from driving “a vehicle on a roadway while using a wireless phone.” This law became effective July 15, 2005, and originally applied to everyone under age 18. It was expanded effective January 1, 2008, to include anyone less than 19 years of age.[xiii] Thus, no person in Illinois under 19 may use a cell phone or electronic device for any purpose while driving. This prohibition applies to hands-free devices as well.

More recent changes to the Illinois statute forbid any driver, regardless of age, from using a cell phone in a designated school speed zone or in a construction or maintenance speed zone. Effective January 1, 2013, the ban on cell phone use by everyone will be extended to any roadway undergoing construction or maintenance, not just those with reduced speed limits. Another recent amendment to this statute prohibits use of cell phones by everyone within 500 feet of an “emergency scene” (defined as one where an authorized emergency vehicle is present and has activated its flashing lights).[xiv]

Since January 1, 2003, school bus drivers in Illinois have not been permitted to operate a school bus while using a “cellular radio communication device” under Section 625 ILCS 5/12-813.1(b).[xv]

Effective in Illinois on January 1, 2013, all commercial drivers will be barred from texting or using hand-held cell phones while driving.[xvi] This brings Illinois in line with federal regulations from the Federal Motor Carrier Safety Administration (FMCSA) and the Pipeline and Hazardous Materials Safety Administration (PHMSA) that went into effect January 3, 2012.[xvii]

While commercial drivers were already subject to the Illinois no-texting law (applicable to all who “operate a motor vehicle”)[xviii], this recent amendment is more detailed in several respects, and a violation carries more serious consequences than the existing no-texting law. Violators of the new texting and hand-held provisions are subject to penalties under the Uniform Commercial Driver’s License Act (UCDLA). A second violation within three years qualifies as a Class B misdemeanor, subjecting the violator to a possible prison sentence of up to six months and/or a fine of up to $1,500.[xix]

A company or individual employing commercial drivers is obliged to “not allow or require its drivers to engage in texting while driving a commercial motor vehicle.”[xx] As a result, a motor carrier (employer) will need to have policies and procedures against use of texting and hand-held devices by its commercial drivers, and will also have to be careful to monitor and enforce compliance with these policies.

In the past few years, the legislative crackdown on cell phone and electronic device use has expanded rapidly. It is expected to continue to do so at all governmental levels. In September 2012, the Governors Highway Safety Association (GHSA), a well-respected and influential nationwide group, amended its policy to encourage lawmaking bodies everywhere to ban all hand-held cell phone use while driving, regardless of the driver’s age or type of vehicle.[xxi]

What to Do If You’re the Victim of “Distracted Driving”

If you are involved in an accident and know, or suspect, that the other driver was using a cell phone, or was engaged in one of the other types of “distracted driving,” you should inform the police and request that they follow up. While the current traffic crash report form in most states does not have a specific category dealing with cell phone use or distracted driving, most police officers will note your comments on the report.

In some instances, a police officer will view a driver’s cell phone to determine if it was in use at the time in question. If the officer does this, ask that the results be put in the report. It’s also helpful to know the cell phone number, the wireless carrier providing the service (Verizon, AT&T, etc.), and the name of the person or company that owns the account.

No law requires that wireless phone providers keep message detail records for a particular length of time. If preserving such a record is important in your situation, you may wish to consult a personal injury attorney.

 


[vii] International Assn for the Wireless Telecommunications Industry http://www.ctia.org/advocacy/research/index.cfm/aid/10323

[viii] http://www.usnews.com/news/articles/2012/06/07/transportation-department-takes-aim-at-distracted-driving-epidemic.

Other websites may show different numbers for states with legislation on this topic; one source listing info on “distracted driving” laws in all states is the Governors Highway Safety Association (GHSA) at http://www.ghsa.org/; see also the Insurance Institute for Highway Safety (IIHS) at http://www.iihs.org/laws/CellPhoneLaws.aspx

[ix] For example, in Illinois, the definition of “mobile telephone” does not include citizens band or two-way radio services — see 625 ILCS 5/6-500. Further, almost every statute or regulation provides for various exceptions, primarily related to emergency-type situations.

[x] At the local level in Illinois, restrictions in addition to the statewide statutes include a Chicago ordinance passed in 2005 requiring all drivers talking on a mobile phone to use a hands-free device. Numerous other municipalities, mostly Chicago suburbs, have enacted restrictions on cell phone usage. In the spring of 2012, Evanston was considering a total ban on electronic devices while driving, including those that can be used hands-free.

[xii] For commercial drivers, as of January 1, 2013, the definition of “texting” in 625 ILCS 5/6-500 (32) includes “….pressing more than a single button to initiate or terminate a voice communication using a mobile telephone…”

[xiv] This prohibition in 625 ILCS 5/12-610.1(e) regarding an “emergency scene” does not apply to “a person using an electronic communication device for the sole purpose of reporting an emergency situation and continued communication with emergency personnel during the emergency situation.”

[xviii] The no-texting law is contained in 625 ILCS 5/12-610.2(b); “motor vehicle” is defined in 625 ILCS 5/1-146

[xix] 625 ILCS 5/6-524(a)

[xx] 625 ILCS 5/6-527(b)

[xxi] http://www.ghsa.org/html/media/pressreleases/2012/20120906_policy.html

 

 

© 2012 by David J. Loughnane and Suzanne M. Stevens