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!

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Author: T. Andrew Perkins

I have practiced law in Rochester since 2001. My practice is varied: appellate law; general civil litigation; real estate; family law; and probate and estate planning. I am an active member in the Peru Grace Brethren Church. I have also served on the boards of various community organizations, including: Fulton County Community Foundation, Fulton County Leadership Academy, Fulton County United Way, Rochester Kiwanis Club, Fulton County Council on Aging, and the Fulton County Chamber of Commerce. You can reach my office from the Links page.

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