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“The New Cell Phone Law: Don’t ‘Lawyer’ and Drive”, KC Bar Bulletin, by Stacey Romberg

By March 22, 2011 No Comments

It’s time to fess up. In a time crunch, I have driven my car while returning calls from clients and other attorneys, holding the cell phone to my ear. Let’s be honest: How many of you attorneys have done the same? Pursuant to Washington’s new cell phone law,1 which became effective on July 1, I could have received a $124 ticket for holding that cell phone to my ear while driving (if I was committing another offense at the time).

Four other states have laws prohibiting the use of hand-held cell phones while driving: California, New York, New Jersey and Connecticut. California’s law also went into effect on July 1. The District of Columbia, as well as some other cities and counties, also have imposed a ban.

In the other four states, using a hand-held cell phone while driving is a primary offense. Meaning, if an officer sees a driver doing it, that officer can pull the driver over for no other reason and issue a citation. To the contrary, in Washington, using a hand-held cell phone while driving is a secondary offense. So a driver must be committing another infraction, such as speeding or running a red light, to be pulled over and cited. Infractions will not become a part of the driver’s record nor will information regarding the infraction be available to insurance companies or employers.

Some exceptions exist, including a driver operating an authorized emergency vehicle; a tow truck driver responding to a disabled vehicle; someone who is operating an amateur radio and possesses a valid amateur radio operator license from the Federal Communications Commission; someone who is using their phone to report illegal activity, summon medical or emergency assistance, or prevent injury to a person or property; or someone using a hearing aid.

California’s new law differs from Washington’s in several respects, in addition to making the offense primary. Notably, commercial drivers are exempted until 2011. Drivers under the age of 18 are prohibited from all cell phone usage, regardless of whether they use a speakerphone, ear bud, headset or other means to avoid holding the phone to their ear. California also has much more lenient penalties, with the first offense being just $20, although penalties escalate with additional violations.

Washington’s new law is simple to understand. But does it make us safer? In my view, it does. The law enhances our safety by raising our consciousness about whether or not we are driving attentively and safely. Since the law was enacted, I use a headset in the car. And yes, using a headset increases my attentiveness, as opposed to holding the phone next to my ear.

However, in my view, the crucial issue is not whether the cell phone is hand held or hands free. It’s the nature of the call. For example, I can drive, use my headset and chat with my mother about what she made for dinner last night. That call requires very little brain power. I can make that call without having it impact my driving in any significant way.

However, calls relating to the practice of law can be far more challenging. These calls can involve us trying to remember the information given to us, since we are unable to take notes in the car, and also processing, analyzing and recalling information and providing a response either to our clients, staff or to another attorney. These calls can require serious brain power. I honestly do not believe that I can make these calls while driving, and be able to give both the call and my driving the attention and presence both require.

Although the nature of the calls was not tested, Frank Drews, an assistant psychology professor at the University of Utah, conducted a study in which drivers were tested with and without cell phones, and then re-tested after a few shots of vodka and orange juice. The result: The drivers using their cell phones, whether they held the phone up to their ears or not, drove as badly as the drivers with a blood-alcohol level of 0.08%, the legal limit in most states. “What the conversation does is pull their attention away from the road,” said Drews. “Your ability to respond to signals in the environment is delayed.”2

And, as we all know, in addition to cell phone calls, drivers face a myriad of other distractions taking their focus away from driving. According to the House Bill Report accompanying the Washington legislation, concerns about the Washington law are summarized as follows:

It is inappropriate to single out cell phones from the many distractions that drivers face. It is really all types of driving distractions that should be prohibited. According to a study conducted in 2003, wireless phones were the eighth biggest distraction out of the nine studied. Cell phones were only the fifth most common distraction according to the Washington State Patrol’s study of distractions that caused accidents.3

Based on that conclusion, I no longer practice law while driving. I also don’t eat in the car, and I work to minimize fiddling with the radio, changing CDs and the myriad other distractions that cause accidents. I encourage you to examine your own bad habits, fess up as I have and make appropriate changes.

Stacey L. Romberg, Attorney at Law, practices in the areas of small business law, estate planning and probate, but not while driving. .

1 § RCW 46.61.667.

2 Seattle Times, June 26, 2008, “Ban on Use of Handheld Cellphones While Driving Starts Tuesday.”

3 House Bill Report, ESSB 5037, as passed, April 11, 2007.

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Reprinted from August 2008, King County Bar Association Bulletin, by Stacey Romberg

This post is for informational purposes and does not contain or convey legal advice. The information herein should not be used or relied upon in regard to any particular facts or circumstances without first consulting with an attorney.

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