Guest columnist: Indiana's texting ban is flawed and unenforceable

June 8, 2011
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Indiana Lawyer Commentary
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Indiana’s ban on texting while driving will go into effect on July 1. The ban provides that a person of any age commits a class C infraction if he or she uses a telecommunications device, such as a cell phone, iPad, or laptop to type, transmit, or read text messages or email while driving. A single violation is punishable by up to a $500 fine. The ban was enacted by House Bill 1129 which passed this spring. It expands on Indiana’s existing texting ban, previously applicable only to drivers 18 and under.

The texting ban may be a good idea from a public policy standpoint, and few disagree that distracted driving can equate to dangerous driving. But the texting ban is flawed and essentially unenforceable as passed.

First, the scope of the ban is limited only to texting and email. It does not cover a broad range of other activities for which these devices are often used. For example, the ban does not prohibit dialing a phone number, surfing the Internet or using the thousands of apps now available on most smartphones and similar devices. These countless other uses serve as plausible defenses for any driver stopped for a suspected violation.

Second, the ban expressly prohibits police from confiscating the device to confirm a violation or for use as evidence. Even if an officer witnessed a driver typing on his device, proving that the driver was composing a text or email is nearly impossible absent a confession.

The texting ban was originally part of more comprehensive distracted driver legislation which included a ban on placing or receiving phone calls. However, the bill was stripped of the provisions banning making or receiving phone calls, leaving only the texting ban in place. This was an apparent compromise as many in the Indiana General Assembly were concerned that there was not enough support for a more comprehensive ban on cell phone use while driving. The end result was weaker legislation against distracted driving that gives potential offenders the plausible defense that they were typing on their phone to dial a phone number rather than to transmit a text message or email.

Indiana is the 32nd state to ban texting while driving for all ages. Another eight states have texting bans for novice drivers, typically those under 18. With some kind of texting ban in 80 percent of states, there is strong nationwide support for this legislation. Conversely, only eight states have broader bans on handheld cell phone use for drivers of all ages (with exceptions for use with hands-free technology). The slow acceptance of more comprehensive cell phone bans by other states may explain why our General Assembly was reluctant to pass a broader ban in the last session.

Indiana’s texting ban includes an exception that allows drivers to use their device in “conjunction with hands-free or voice-operated technology.” This exception is often found in distracted driver legislation from other states, but it only makes sense as an exception to a ban on making or receiving phone calls while driving. Many devices now include technology that easily allows users to make or receive a phone call with only their voice. However, this technology is not as simple to use for composing text messages or emails.

Voice transcription technology, such as the Dragon Dictation app for the iPhone and Android devices, allows the user to compose a text or email with his voice. But any dictation app also requires the user to review his message for accuracy before sending it. Correcting transcription errors requires the driver to use his hands. Therefore, the use of such hands-free or voice-operated technology in this context still requires the driver to take his eyes off the road to ensure his message was composed correctly, thus defeating the underlying purpose of the ban and its exception.

The ban on texting while driving remains a step in the right direction despite its flaws and enforcement problems. It stands as a statement that our General Assembly recognizes the dangers of distracted driving and believes Indiana should have a public policy against it. As the popularity of these devices grows, so does the potential for driver distraction and harm. Hopefully, this ban is just the first step toward more comprehensive and enforceable legislation to protect our citizens from the ever-increasing dangers posed by distracted driving.•

Chris Pearcy is the senior associate at Hume Smith Geddes Green & Simmons LLP in Indianapolis. His practice focuses on civil litigation, including first- and third-party insurance litigation, complex insurance coverage, dram shop defense, premises liability, auto liability, construction accidents, contract disputes, and business litigation. The opinions expressed in this column are the author’s.


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  1. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  3. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.