Distracted driving: If their lips move… detain and ticket?

Author: Lance Eldridge

At the end of last year the federal government’s independent National Transportation Safety Board (NTSB) urged all states to enact laws that ban drivers from using cellular telephones, including wireless headsets and the increasingly common built-in hands-free technology found in new-model Fords and General Motors automobiles. A number of states already prohibit the use of hand held cellular telephones or texting while driving. Now, if the NTSB has its way, if a driver’s lips are moving he or she may be endangering lives and should be breaking the law, or at least violating civil procedure.

For many supporters this announcement is a warning to distracted drivers to end the practice. The suggestion is also an example of how, with federal nagging, state legislatures could create significant litigation and public trust problems for local law enforcement. Armchair critics of police procedure will also find such a ban to be a gratuitous gift for their ill-conceived notions of proper police conduct.

Deborah Hersman, the NTSB chairwoman, said that her agency’s concern “was heightened by increasingly powerful cellular phones that people can use to e-mail, watch movies and play games.” This echoes the desires from UN Secretary General Ban Ki-moon, who also wants to end the practice, along with all other aspects of distracted driving.

Would a Ban Save Lives? The NTSB isn’t alone in its hopes for tougher sanctions. Such groups as the AAA, The American Association of Motor Vehicle Administrators, the American Association of State Highway and Transportation Officials, and the Governors Highway Safety Association are collectively urging both the House and Senate to impose such a ban.

Supporters insist that a ban will save lives. National Highway Traffic Safety Administration (NHTSA) statistics show there are 188 million vehicles on the road in the US, driven by 120 million licensed drivers. Numbers from the National Safety Council, using NHTSA data, estimate that 23 percent of all traffic crashes — 1.3 million crashes a year — involve cellular telephone use, and another 200,000 to texting.

The federal government can pressure states to impose such a ban. In 2003 the NHTSA forced at least 14 states to lower their drunken driving limit from .10 to .08 by threatening to withhold millions of dollars in highway construction funds. The Department of Transportation has done something similar in the cases of encouraging states to pass 21-year old drinking laws and the now defunct 55 mph speed limit.

At least until after the election the more politically astute head of the Department of Transportation is keeping NTSB in check. Secretary Ray LaHood, after consulting with automobile industry executives, put the plan on hold. It's not that Secretary LaHood doesn’t support NTSB’s conclusions, he just likely doesn’t support another controversial federal mandate during an election year.

Given that drivers face numerous distractions, it’s unlikely that focusing solely on the evils of cellular telephones would decrease crashes. According to the Insurance Institute, which receives financial support from automobile insurers, current state bans on either cellular telephone use or texting have done nothing to decrease crash rates. In fact, it's possible some studies showing a high correlation between cellular telephone use and crashes have overestimated the risk. In a recent Associated Press article several law enforcement officials state their concerns that enforcing such a ban may not find acceptance in the communities they serve. The officers suggest that the reason is that cellular use in automobiles has become so commonplace that any enforcement effort will spawn a strong public backlash. This stands in stark contrast to reports that the public is increasingly supportive of total bans, with numbers hovering around fifty percent http://www.nsc.org/Pages/NSCestimates16millioncrashescausedbydriversusingcellphonesandtexting.aspx, at least according to the ban’s supporters. It’s doubtful the public supports grasp the ramifications.

It’s feasible for police to enforce a cellular telephone ban, but it’s probably not acceptable or a suitable response to poor driving.

Matt Sedensky, the AP article’s author, rightly asks: “A driver in the next lane is moving his lips. Is he on a hands-free cellphone? Talking to someone in the car? To himself? Singing along to the radio?”

Nanny-State Logic Many civil libertarians from both the right and left already see reasonable suspicion as a mere pretext for constitutional abuse and police malfeasance. For traffic offenses, officers typically witness the violation and conduct a stop based on probable cause. A state traffic offense that may require an officer to only see a driver’s lips moving to justify contact is begging for litigation. Drivers can easily deny the use by saying they were either talking to themselves or singing along with music. A ban on cellular telephone use will place local law enforcement officers in the position of either ignoring the offense altogether or enforcing what will likely become an unpopular and unnecessarily intrusive mandate.

Unsurprisingly, the ideas emanating from Washington’s fast and furious good-idea factory cannot be judged by any reasonable standard.

Any ban will be another step on a slippery slope where, after prohibition, the federal government will want to address the next driving distraction, which may well be raising the age of licensed drivers to 21, preventing drivers from eating, putting on makeup, or even verbally disciplining their children. In each instance, proponents will make the case that a ban of a specific activity will save lives, and in each case the pandering politics of the moment will override common sense. Following NTSB’s nanny-state logic it will be only a matter of time before car travel itself is considered an immediate threat to national health. In the end, opposition at the state level will turn to grudging support, or at least silent acquiescence, when confronted with false moral choices that often motivate political fear.

This is a silly way to run a federal government. The hope of banning cellular use springs from a deep well of questionable intentions in an effort to protect us from ourselves. Resting comfortably on the false notion that the law will save lives, supporters can fecklessly characterize opponents as insensitive to the death of innocents. The NTSB's suggestion shows just how out of step some Washington policy makers are with everyday law enforcement.

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