On January 1, California Vehicle Code _23123.5 went into effect which states
that "a person shall not drive a motor vehicle while using an electronic
wireless communications device to write, send, or read a text-based communication."
At first glance, the law appears to be clear and reasonably likely to result
in safer roads by decreasing distractions. However, there are serious
questions about the scope and enforcement of this law and ultimately,
whether laws prohibiting specific acts while driving are even necessary.
Scope of the Law. For drivers 18 years and older, the law prohibits "text-based
communications" while driving. Theoretically, sending video or picture
messages which are becoming more and more common is not prohibited as
they are not "text-based" by definition, though we'll have
to await judicial interpretation to know for sure. Also, depending upon
the interpretation of the word "communication" (i.e., does it
mean a "two way conversation" or any conveyed message?), using
the internet feature on a cell phone to look up directions or check traffic
conditions may be prohibited. Finally, it is unclear whether GPS units
are "wireless communication devices" and therefore covered by
the statute, even though the legislature probably did not intend to prohibit
the use of GPS devices (see article next column).
Enforcement of the Law. Practically, speaking, an officer looking from
outside the vehicle will not know the difference between a driver typing
a text message, which is illegal, and typing a phone number in order to
make a call, which is legal. Also, receiving a text-message is not prohibited,
presumably because text-messages are delivered immediately upon being
sent and the driver has no control over when he or she receives a text-message.
However, if a driver glances at his or her phone after hearing an audible
notice that a text-message has been received (which is a conditioned response
for many), there may be no way to dispute an officer's claim that
the driver was "reading a text-based communication."
Over time, these questions may be answered by the Courts or perhaps the
legislature will continue to pass new laws to cover situations not covered
by prior laws (which is precisely what the "no-texting" law
is to the "hands-free" law). However, there is, and always has
been, a "basic speed law" in place that allows an officer to
cite a driver for speeds in excess of those which are safe for conditions.
This law does not focus on the specific act the driver is or is not doing,
but on the more important factor of how doing that act is affecting his
or her driving. In other words, the basic speed law prohibits doing anything
while driving, if doing that "thing" makes driving unsafe given
current conditions. So, if you are talking on a cell phone, sending a
text-message, eating a burrito or blow-drying your hair while driving
and doing so causes you to drive unsafely, then you can, and should, be
cited. Applying that logic to cell phones, if using a phone to make a
call or send a text-message makes you drive unsafely, you should be cited
under the basic speed law. If using your phone or a sending a text-message
can be done safely, however, those acts should not, in and of themselves,
be illegal. Otherwise, the legislature is going to find itself tumbling
down a "slippery slope" by trying to create more and more laws
to prohibit more and more specific acts, when the real issue whether or
not a driver is driving safely is already covered by the basic speed law.