“Sir, have you been texting this evening?”

Ok officer, maybe I sent one text, but that was hours ago!

Okay officer, maybe I sent one text, but that was hours ago!

You might want to practice your response to this question, especially if you live in Utah. Following the growing trend, Utah recently passed its own legislative ban on texting while driving. The fact that Utah passed such a law is not surprising–similar statutes exist in at least 14 other states, including Tennessee. Always the one-upper, however, Utah raised the bar significantly with regards to punishment. If caught texting behind the wheel, offenders now face up to 15 years in prison. Fifteen years. That was not a typo.

Okay, to be fair, I should point out that such punishment only applies in cases where a texting driver causes the death of another, as this law came in response to a text-caused crash that killed two scientists in 2006. Think vehicular manslaughter stemming from a DUI. In fact, that’s what Utah’s legislators did. “It’s a willful act,” says Lyle Hillyard, a Republican state senator and outspoken advocate of the law. “If you choose to drink and drive or if you choose to text and drive, you’re assuming the same risk.” While this is certainly an arguable point, I’m not here to discuss assumption of risk. I didn’t have much to say about it on my Torts exam, and I can’t imagine I’d be any more insightful now.

Ruling with an iron(ic) fist

Ruling with an iron(ic) fist

But Utah’s law does raise some other serious legal questions, especially since it relies on the premise that texting while driving is perfectly analogous to driving under the influence of alcohol. While proponents of such laws are quick to cite studies that show an increased risk of crashing when texting, opponents are equally quick-to-the-draw with perhaps the biggest concern: a lack of enforceability.

If an officer witnesses Bubba taking pulls from his handle of Evan Williams, enforcement is not a problem. But how is an officer to distinguish between a driver who is illegally texting and a driver who is merely dialing, a perfectly legal activity? Then there’s the issue of determining whether the crime has actually been committed. With drinking, this is also much simpler. First, an officer can often smell alcohol as he approaches or speaks with a driver. Next, he can subject said driver to a breathalyzer or other sobriety test to determine intoxication. It’s hard to see the same applying with texting, however. Unlike alcohol, texting has no odor. Nor is there any thumb-scanning technology that could, like a breathalyzer, determine levels of recent illegal activity. Add to these facts the general prohibition on unlawful search and seizure–whose importance bar an officer from simply confiscating your phone to determine recent texting activity–and texting seems like the perfect drug: cheap, easily accessible, and nearly impossible to detect.

While Tennessee has noted such problems with its texting law, there has not been a public uproar in response. This is likely because, like all other states save Utah, Tennessee’s law only imposes fines. The problems with enforceability and fairness are exacerbated in Utah, however, where an offender loses not only potential beer money, but up to a decade-and-a-half of his liberty. Generally, I do not disagree with punishing drunk drivers in vehicular homicide cases. And I would not be vehemently opposed to a law that punished texters in a similar fashion, provided that law was fair and enforceable. Until that day comes, however, I will just keep adding to my list of reasons I’m glad I don’t live in Utah.

Jesse Bland

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One Response to Texting is the New Drinking

  1. Anonymous says:

    In fine-only states, it’s true that getting access to a cell phone after a stop would seem a bit of a stretch–sure the phone is in plain view but the contents certainly are not. However, in Utah, where there are now arrestable offenses, seizure of the phone becomes necessary to prevent the destructability of evidence. Even so, a search incident to arrest should probably only result in a search for the phone, and not for recent text messages. That is better obtained after securing a warrant. But then again, constitutional limitations are only as good as the officers that abide by them and the judges that enforce them.

    What seems to be a larger issue is a potential rise in pretextual stops even in fine-only states. An officer could say that it appeared the driver was texting, perhaps from something as vague as looking downward, but even after the driver explains otherwise, you know the routine that follows: “well while I’m here, you don’t mind if I search your car, do you?”.