OFF THE WIRE
Uncertain rules leave lots of wiggle room for violators, problems for authorities.......
April is Distracted Driving Month, and it’s been chock full of announcements about the risks of using cellphones while behind the wheel.
But enforcement has serious challenges, on the streets and in the courtroom.
The legal penalties for being on a cell don’t pack the punch other traffic violations do. And in court, even with phone records as evidence, making a case stick is hard.
“Unless someone admits they were on their phone, or a witness says they were definitely on their phone — it’s pretty tough to prove,” said San Diego police Officer Mark McCullough of the Traffic Division.
About 7 of 10 Americans talk on their phones while behind the wheel, and about 30 percent of U.S. drivers sent or read text messages or emails while driving, according to a survey published in 2013 by the U.S. Centers for Disease Control.
Closer to home, half the San Diego County college students surveyed by a driving safety program at UC San Diego’s School of Medicine said they sent texts while driving on the freeway, 60 percent while in stop-and-go traffic or on city streets, and 87 percent at traffic lights.
“Unfortunately, we’re all addicted to instant information,” said California Highway Patrol Officer Jim Bettencourt. “Cellphones are attached to us at the hip, and we have to break that mold, that thinking. It can wait.”
Studies show texting while driving can delay drivers’ reaction times as severely as drinking, and that hands-free cellphone use is just as distracting as hand-held phone use. But how do authorities prove using the phone caused a crash?
Chris Cochran, assistant director of the state’s Office of Traffic Safety, said without a confession or a solid witness, phone records may be the only proof available, and it can be costly and time consuming to pull them.
“It’s not like alcohol where you can measure it in someone’s blood,” Cochran said.
And what is and is not allowable can be murky.
• Talking on a cellphone without a hands-free device: illegal, unless you’re making an emergency call, operating an emergency vehicle or on private property; dialing is OK. Drivers under 18 are barred from all phone use.
• Writing, sending or reading text-based communications: also prohibited. This includes text and instant messages and emails.
• Using a phone’s mapping software: lawful, which suggests other cellphone uses like checking websites or social media time may also be exempt from the law.
“All of those things can be dangerous, but whether they meet the letter of the law will have to go through the courts,” Cochran said.
Motorists are growing more savvy about the rules, and more are contesting their tickets in court — not always successfully, McCullough said.
“They honestly believe they aren’t doing anything wrong,” he said. “They think they do it better than the person next to them.”
And pinning down cellphone use as the cause of a crash, particularly a serious injury or fatal crash, is problematic, McCullough said.
“I can prove you ran a red light. I can probably even prove you were on your phone,” he said. “But it is very difficult to prove that being on your phone caused that crash.”
Phone records may show a call or text went through around the time of a collision, but even if it was within moments, the defense could argue the driver was paying attention just before a crash. And phone records don’t log text messages left unfinished or unsent.
San Diego attorney C. Bradley Hallen cites the case of Minarokh Hamzavi, 65, who was crossing Navajo Road in a marked crosswalk when a van turning onto the street fatally struck her, according to the police report. Hallen, who represents the family, said a witness reported the driver was looking into her lap at the time of the crash.
The driver’s phone records showed she’d received a text message about a minute before the accident, but she denied using her phone when she hit the pedestrian.
Hallen argued she should be charged with felony vehicular manslaughter, but prosecutors did not agree.
A driver who kills someone while on their phone, without committing any other infractions, is unlikely to meet the standard of gross negligence required for a felony charge, said Chief Deputy District Attorney Dave Greenberg. He added it was unlikely 12 jurors would vote to convict in such a case.
Hallen contends that without stricter penalties, drivers will continue to flout the law.
According to California’s vehicle code, using your cellphone without a hands-free device or texting while driving results in a $20 fine for the first offense and a $50 fine for offenses after that. With added fees, the cost comes out to about $160 and $280 respectively.
Running a red light? The fine is $490, plus penalty fees. Speeding 16 to 25 mph above the speed limit? $367.
Cellphone tickets also don’t result in points against your driving record.
“Until the legislation is amended to identify this conduct as being potentially lethal — as it is — people are going to continue to drive and text at the same time, notwithstanding all the public pronouncements,” Hallen said.
Cochran said the likely solution will be time, more than anything.
It took four decades for seat belt use in California to go from a 15 percent compliance rate to a 97 percent compliance, he said. If the state still had the same rate of drunken driving it had in 1980, close to 4,000 people would be killed a year, rather than 800.
“We’re playing catch up, and it’s so new,” he said of cellphone use while driving. “It’s not going to turn around in a year or even five years. It’s going to take a while.”