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

June 8, 2011
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Indiana Lawyer Commentary
pearcy-christopher-mug.jpg Pearcy

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. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

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