Reprinted with permission from the King County Bar Bulletin.
In 2008, Washington restricted drivers from using their cell phones by creating a new secondary infraction for driving while holding a cell phone to one’s ear. Drivers were also prohibited from sending, reading or writing text messages.
On June 10, Washington began enforcing its second and more restrictive attempt at resolving the problem of cell phone-distracted driving. Now, such conduct is a primary offense.
But, does this change really enhance our safety? A violation still does not become a part of the driver’s record. The information regarding this primary traffic infraction is not made available to insurance companies or employers. The fine remains the same: $124. And you can still perform many distracting, cell phone-related activities without violating the law.
For example, it’s perfectly legal for you to talk on your cell phone while driving so long as you use a speaker phone or headset. As stated in my earlier Bar Bulletin article on the 2008 law,1 if I am driving while engaged in a substantive discussion with my client or another attorney, am I distracted despite my use of a headset? Of course.2
Also, the law specifies that “[a] person does not send, read, or write a text message when he or she reads, selects, or enters a phone number or name in a wireless communications device for the purpose of making a phone call.”3 So, if I’m driving down I-5, pick up my Blackberry, click on my contacts list, scroll down to find Joe Smith’s number, and then call him up, my eyes are not on the road while performing this activity. In fact, I’m highly distracted.
Texting poses more challenging problems in terms of enforcement. If a police officer sees you holding a cell phone to your ear while driving, it’s a very visible, obvious offense. But what if that same police officer sees you driving and occasionally looking down for brief periods? Are you texting or not? Who knows?
According to a recent “Driving While Distracted” survey conducted by Nationwide, one in five drivers admits to texting while driving. That number increases to 47% for drivers under age 35.4
Texting while driving is so prevalent that a phone application, iDrive, now helps text-frenzied drivers concentrate on the road. iDrive creates an “out of office reply” for texts by sending automatic reply texts explaining that you are currently driving and will return the text message shortly.5
Despite the loopholes in the new Washington law, I believe it ultimately will enhance our safety by increasing drivers’ awareness of the dangers of being distracted. According to the Nationwide survey, 40% of people who drive while texting state that they do it less now than in 2009. Similarly, 30% of respondents state that they talk less on their cell phones while driving.
Forty-eight percent of drivers on the West Coast, where cell-phone laws are prevalent, say they use hands-free devices “all the time or often,” as opposed to 13% of Midwest drivers.
Does Washington’s “upgrade” to the cell-phone law solve the problem of cell phone-distracted driving? Absolutely not. But it may cause us to pause and think next time we are stuck in traffic and are tempted to return our client’s call or respond to a text.
Stacey L. Romberg, Attorney at Law, in addition to driving safely, practices in the area of business law, estate planning and probate: www.staceyromberg.com.
1 August 2008 King County Bar Bulletin.
2 According to professors David Strayer and Frank Drews of the University of Utah, it is not busy hands that pose a distraction risk, but a busy brain, which causes drivers to visibly miss hazards on the road, regardless of what kind of cell-phone device they are using. See “Cellphone law: Will the roads be any safer?” http://seattletimes.nwsource.com/html/localnews/2011987699_cellphones30m.html?syndication=rss.
3 RCW § 46.61.668.
4 See http://www.nationwide.com/newsroom/dwd-surveys.jsp.
5 http://www.ktla.com/news/landing/ktla-texting-while-driving,0,4684522.story.
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