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Indiana's texting ban difficult to enforce

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Texting while driving is a Class C infraction in Indiana, with a fine of up to $500. But look around as you’re driving, and you’ll likely see at least a few motorists who appear to be fiddling with their phones.

Since July 1, 2011, Indiana Code 9-21-8-59 has prohibited texting while driving. It does not outlaw checking Facebook, searching for nearby restaurants, or any number of distracting activities that can be performed on a smartphone.

koch-eric-mug.jpg Koch

Police are not permitted to confiscate a phone for the purpose of determining whether someone was texting while driving, which leads some people to question the enforceability of the law. And others wonder whether the law will have any measureable effect on changing dangerous behaviors.

Enforceability

In Indiana, texting-while-driving is a primary offense, meaning officers can pull over a motorist for suspicion of texting alone.

Between July 1 last year and June 1, 2012, Indiana State Police issued 125 citations and 114 warnings for texting statute violations; in that same time, ISP issued 141,276 speeding citations and 48,889 seatbelt violation citations.

Chris Daniels, traffic safety resource prosecutor for the Indiana Prosecuting Attorneys Council, said that most prosecutors have not seen an influx of texting tickets. “I cannot say whether it’s because the law has had a deterrent effect, difficulties in enforcement, or a combination of both,” he said.

Attorney and Rep. Eric Koch, R-Bedford, authored House Bill 1129, which created the new statute.

“I think we are still watching it and getting feedback on it,” he said. “It’s not necessarily a perfect law – I’m not sure any law is perfect, and there had been some concern about the difficulty of enforcement. But at the same time, it does make a public policy statement.”

Koch said that failing to outlaw texting while driving could cause new and inexperienced drivers to assume it’s OK for them to text while driving.

“The data show that people do want to and try to comply with the law, so I think when we make a statement like we did – that people should not text and drive – people who want to be law-abiding will follow that,” he said.

Rep. Sean Eberhart, R-Shelbyville, voted against the bill last year.

“I did vote against it, and the first reason is it’s unenforceable, and we’ve seen that and heard that from many law enforcement folks who say there’s no way they can enforce this law,” he said. “I’m not in the habit of supporting a piece of legislation just to try to make a point.”

The Governors Highway Safety Administration’s report, “Distracted Driving: What Research Shows and What States Can Do,” advocates texting bans for drivers but notes the difficulty of enforcing those laws. The GHSA also advises that not enforcing existing statutes sends a message that the law is unimportant.

But enforcement – as one experiment showed – may mean more than simply initiating a traffic stop.

The National Highway Traffic Safety Administration conducted a test in two states with laws against driving while using hand-held cellphones to determine whether high-visibility enforcement initiatives would result in increased compliance with state laws. High-visibility enforcement combines dedicated law enforcement during a specific period and a media campaign that supports the enforcement-based message. The most well-known campaign is “Click It or Ticket,” which used a multi-pronged approach to encourage seat belt law compliance.

In Syracuse, N.Y., and Hartford, Conn., the study looked at the effectiveness of enforcement waves at a time when television, radio and online ads promoted the enforcement message. It also explored different methods of spotting offenses.

mcmillin_jud-mug.jpg McMillin

In four “waves” of enforcement, the percentage of drivers observed holding their phones to their ears decreased through the end of the fourth enforcement wave. Compared to control cities, where no media campaign took place and police did not engage in a targeted cellphone-use enforcement campaign, the reductions in Hartford and Syracuse were significant, reflecting a 57-percent decline in observed cellphone use, compared to a 15-percent decline in the control cities.

The research also supported the conclusion that police were more successful in seeing violations when they used creative approaches. Hartford police favored a team approach, where a stationary officer would radio ahead to a partner anytime the first officer saw someone using a cellphone while driving, and the second officer would initiate the traffic stop. Syracuse preferred roving patrols in either unmarked cars or vehicles such as SUVs that offer a higher vantage point, enabling officers to see texting and hand-held violations more clearly.

Other approaches

Rep. Jud McMillin, R-Brookville, is an attorney and former prosecutor who voted against Koch’s legislation.

“I had three basic problems with it at the time. One is that the problem we’re trying to fix is already covered in the law,” he said.

During discussions about the bill last year, he argued that if a driver were eating, applying makeup, texting, or otherwise distracted and caused a crash resulting in injury or death, the criminal recklessness statute would apply.

“If I was a prosecutor, I wouldn’t have any problem taking the case to trial under a criminal recklessness statue if someone had hit somebody and hurt them or killed them,” he said.

Another reason he objected to the law is that it could have the unintended consequence of people driving more poorly as they attempt to conceal their texting from police.

In September 2010, the Insurance Institute for Highway Safety, Highway Loss Data Institute reported that an analysis of collision loss claims in four states that had enacted texting bans showed no decline in crashes. Rather, claims appeared to increase slightly, and researchers theorized that could be because drivers in those states responded to the ban by placing their phones in their laps when texting in order to avoid detection. However, the researchers went on to say that the study had some weaknesses, because collision claims were not a perfect indicator of crashes in which distraction was a factor.

textingAngie Rinock, spokesperson for State Farm Insurance, said Indiana’s law is a good first step toward raising awareness about the dangers of distracted driving. State Farm also emphasizes the importance of graduated driver’s license requirements in reducing teen crashes.

Indiana enacted its GDL restrictions in 2009, which state that drivers younger than 18 may not use any telecommunication device while driving, except to make emergency 911 calls. Washington, D.C., and 31 other states have imposed regulations that prohibit younger drivers from using cellphones while driving.

Sending a message

On June 6, a Massachusetts judge sentenced 18-year-old Aaron Deveau to prison for a fatal crash he caused when he was 17. Prosecutors said Deveau had been texting before he crossed a center line and collided with another vehicle, killing the occupant. The judge reportedly wanted to make an example out of Deveau in issuing the sentence of 2 1/2 years, with all but one year suspended. But penalties are not a deterrent for all people, as shown by the ongoing incidences of fatal crashes caused by drunk driving.

The Indiana Criminal Justice Institute reports that last year, the state had 1,027 crashes where cellphone use was listed as a contributing factor. Of those, five were fatal crashes, and seven fatalities occurred.

McMillin said he thinks Indiana’s law will not stop people from texting and driving, because the root cause of that problem is simply poor judgment. He thinks that the time spent hearing testimony and gathering the input and research necessary to craft a new law would be better devoted to educating people about making smarter decisions.

“We seem to overestimate what we have the ability to do in the Legislature a lot,” he said.

A study by the NHSTA in New York and Connecticut found most drivers reported a willingness to text or use their phones while driving and at the same time believed it was important for police to enforce laws preventing such practices. Those conflicting viewpoints highlight the difficulty of getting people to understand the risks associated with their own behaviors.•

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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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