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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. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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