Tyrannosaurus Text

Distracted Driving is big. Dinosaur Big.  The National Highway Safety Administration even has a slick website to raise awareness.  On July 1, 2001, Indiana will sink its teeth into the problem with a new law making it illegal to type, transmit, or read a text or email while driving unless a hands-free or voice operated technology is used.

This brings Indiana in line with 34 other states, which makes distracted driving a hotbed of legislation of later.

Source: Governors Highway Safety Association

Here’s a tip.  If you want to understand statute, concentrate on the verbs.  The law only prohibits drivers from “typing”,  “transmitting”, or “reading”  texts or emails.  It does nothing to prevent someone dialing a phone, or thumbing through a contact list to find someone’s phone number, regardless of how distracting it is or how many numbers must be pressed.  It does not prohibit looking at (or taking) pictures on a handheld device.  It doesn’t stop someone from fumbling around the GPS listing for the nearest Starbucks because of a serious Caramel Macchiato addiction.  And although simple human dignity might throw up a Yield sign to the practice, it does not prohibit searching your Ipod for that Celine Dion song from Titanic you keep humming in the shower.

From my perspective, the interesting part of the new law, most of which will be codified at I.C. 9-21-8-59, is this gem:

A police officer may not confiscate a telecommunications device for the purpose of determining compliance with this section or confiscate a telecommunications device and retain it as evidence pending trial for a violation of this section.

This means that the officer cannot pull me over and take my phone as evidence that I was texting.  I believe it also means that the officer cannot lawfully demand to see my phone to determine if I was texting.

LOL? Not so much.

Suppose Sally has a smartphone.  Naturally, Sally’s smart phone can make phone calls.  And it can play music.  And it takes pictures. And it is a GPS.  It also has many apps that can use the music player, the camera, and the GPS, among other features.  Finally, Sally’s smartphone lets her send, transmit, and read emails and texts.

Now suppose Sally drives through an intersection, with her smartphone in hand.  The officer parked nearby notices Sally, and thinks that she may have been sending, transmitting, or reading a text or email. Does he write her a ticket?  If he does, can she defend it by explaining that she was not texting but was dialing a friend to talk on the phone? Time will tell. The answer to both questions is probably yes.

It is extremely difficult for an officer to know whether a driver’s behavior in staring at a 3.5″ screen on a handheld device was for the purpose of reading a text or choosing a song to play on the Ipod.  It’s a bit like a law making it illegal to play only AM stations on the radio while driving.  When legal and illegal behavior looks nearly identical, and an officer is limited in his investigation of the facts, the law becomes a magnet for disputed cases.

Like all traffic infractions, the deterrence of possible enforcement will do more to promote public safety than actual enforcement.  I expect many warnings to be given in the first few months.

Two more observations.  The law makes an exception for contacting 911 in an emergency.  That’s right, rest easy.  You may still text 911 in an emergency.  Yes, that was my reaction as well.

Finally, the law excludes:

amateur radio equipment that is being operated by a person licensed as an amateur radio operator by the Federal Communications Commission under 47 CFR Part 97

So, congratulations HAM radio operators!  If you can figure out how to load that Radio Shack museum that’s been collecting dust in your basement since Desert Storm into your brother’s Ram van and then determine how to send a text from it, then you are home free!

I Call Do-Over: Legal Finality and the Narrow Perspective of Now.

The truth is that most court decisions are final, so do not take them lightly.

Project of the Week: Answering some common questions about legal resolutions and how the public at large perceives them.  Consider the following FAQs.

Q.    Why do criminals get so long to appeal their convictions?  It seems like it just goes on and on forever.

One of the most common critiques of the American legal system is the supposed endless nature of litigation.  In the context of criminal appeals, the public at large perceives the process as unending, spending precious public funds on criminals, with no real finality.

Tell that to one of the criminal defendants whose convictions are swiftly affirmed by the Indiana Court of Appeals.  In 2009, the Court of Appeals disposed of 1448 direct criminal appeals, and 1242 (86.1%) resulted in affirming the lower court. In 2010, there were 1286 direct criminal appeals and 1113 (86.5%) were affirmed. (Meaning simply that the Court of Appeals agreed with the lower court’s decision, whatever it was.)  Though the State can appeal certain decisions, the State cannot appeal an acquittal. Therefore, the vast majority of these appeals are initiated by the criminal defendants. And of those not affirmed, some were sent back to the trial court to correct an evidence or sentencing matter, which would not directly result in a defendant’s conviction being overturned.  That means of the 14% that aren’t simply getting affirmed, only a portion of those end up with a clean reversal.  As to the time involved, as of December 31, 2010, the average age of a pending case in front of the Indiana Court of Appeals was a little over 1 month.   (Source: 2010 Court of Appeals Annual Report.).

All in all, that’s hardly a Court where time is a bottomless abyss. So where does the perception of endless criminal appeals come from?  Here are a few contributors:

  • Much of the news coverage regarding long-in-the-tooth appeals involves very serious charges, such as murder.  These make up only a small percentage of overall criminal docket of the Court of Appeals.
  • In Indiana, there are qualification requirements on attorneys who defend murder cases, to help insure that each defendant receives a qualified attorney.  This means that fewer attorneys are available for murder cases, which does increase both the time and cost involved (usually paid by a county’s Public Defender budget).
  • Many news stories do not distinguish between an appeal and a post-conviction matter.  An appeal, or more precisely a “direct appeal,” has very strict time limitations, and can only address what happened at the trial.  A post-conviction action may occur years or even decades later, and has the latitude to address issues such as new evidence, or jury misconduct, which is either impossible or impractical to raise in a direct appeal.  Of course, post-conviction relief petitions are typically even less likely to succeed than appeals, because of the very heavy burden imposed.  Therefore, what NBC describes generically as an “attempt to get a new trial” may not technically be an appeal at all.

Finally, remember this rule: court orders and judgments are valid until the same (or higher) court says differently.  This means while Lefty Malone is appealing his 2001 bank robbery conviction, the conviction stands.  If it takes him 10 years to exhaust his direct appeals and his pursuit of a post-conviction relief request, all of which are unsuccessful, his conviction is no more or less valid in 2011 than it was in 2001.  The conviction does not languish in legal limbo while the appeals process winds its way through the courts. It’s not a conviction with an asterisk.  It’s a conviction.  Challenges only matter if they are successful.

The truth is that the law generally treats final matters with finality.  Because due process requires an appeal criminal cases, a convicted criminal may bring challenges in various forms. But these are rarely successful and it’s a distortion to consider the conviction incomplete while such challenges are proceeding.

Q.     Well, maybe that’s true for criminal cases, but what about civil cases – lawsuits and stuff?  Those kinds of fights are never-ending, aren’t they?

Although it’s small comfort to those in the midst of a civil legal dispute, finality does exist in civil lawsuits and is essential to economic stability.

Unlike criminal matters which are perceived as having endless appeals after the trial is over, the critique of civil cases is that they take a long time to get to the trial.  Many observers mistake this as wasted, preliminary time in which lawyers ask questions, demand documents, and try to increase the number of hours they can bill before the trial starts.  In the late twentieth century, federal and state courts changed the way that parties share information leading up to the trial.  Modern rules require parties to disclose certain information, if asked.  This “discovery” process is designed to run without the involvement of the judge.  It was created to increase settlements, as each party would know the strengths and weaknesses of the other side before the trial started and thereby have a more realistic view of what would happen at the trial.  In one sense, it works, since most civil cases end in settlement and not trial.

Unfortunately, discovery can be abused when one side demands more documents than is really required to evaluate the case or interviews more witnesses than necessary to understand the issues.  Since the courts are not ordinarily involved at that early stage, it is difficult to speed up this process.  However, because modern rules favor allowing the parties to be thoroughly prepared for trial rather than rushing to get to trial, delays can result–especially if the issues are complicated.

The reversal of a criminal conviction is news precisely because it is unusual.  The setting aside of a divorce agreement, or business contract, is perhaps even more so.  I am often taken aback by the casual nature with which many believe a conviction can be reversed, expunged, or set aside.  Likewise, many think that attorneys posses all manner of “tricks” to secure one party’s avoidance of the terms of a contract.  It’s not that these things never happen.  Convictions get reversed.  Contracts do get set aside by the courts.  But these are the exception, not the rule.

For good reason, too.  The inability to rely on contractual relationships, and the inability to enforce them, retards economic growth. I recently read that a man is seeking to set aside his divorce agreement because the value of assets assigned to him – and against which he paid his ex-wife – happened to be held with Bernie Madoff and turned out not to be quite as valuable as he thought.  Not surprisingly, he wants some of the money he paid his ex-wife back. It may seem unfair to deny his request, but the alternative has its own set if dangers.  Allowing a court to re-write a 5 year-old divorce agreement could undermine the necessary finality of divorce agreements and, in turn, contracts generally. BIZCLIR provides a good summary of the relationship between contract law and economic growth.

Q.     Does that mean everything that is said in the media about court cases is bogus?

No.  But it does suffer from the narrow perspective of now.  Author and screenwriter Ben Hecht (1893-1964) described this type of media distortion this way:

Trying to determine what is going on in the world by reading newspapers is like trying to tell the time by watching the second hand of a clock.

Perspective is important.  News about airline travel, consumer products, diet fads, and cancer risks, regularly prepare us to be on guard against particular, specific dangers, when others of more statistical importance and real-world risk may go unnoticed.  Consultant David Ropiek calls this the “Perception Gap” that divides the real risk from the one we perceive.

Perspective about the legal world is important, too.  News tends to focus on statistical outliers like the plane that did not land safely, or the not-so-peaceful demonstration.  Coverage of courts is no different.  News often highlights the most sensational crimes or the lawsuits with the most money at issue.  Of course, this is what makes them newsworthy in the first place.  These weighty criminal and civil matters are accompanied by procedural safeguards to help courts attempt to reach the right decision.  Just as most criminal cases aren’t murders or rapes, most appeals don’t take a decade.  Likewise, most civil suits are not multi-billion dollar patent infringement cases, so most discovery doesn’t take seven years to complete.

The truth is that most court decisions are final, so do not take them lightly. Do not assume that you can always come back to court and undo something that you’ve done.  Courts are not a good place to ask for a do-over.