Just what we need - a new law on distracted driving

I've written extensively about the idiocy of laws to ban texting while driving (here, here, here, here, here, here, here, here and here) and one of the points I routinely raise is that laws already on the books cover the issue. 

It's called 'distracted driving' or 'reckless operation' or any number of other names depending on the state or locality.  They all mean the same thing:  driving without due attention to the task. 

These existing laws are sufficient to cite someone who is texting while driving or talking on the cell phone while driving and not paying attention to their actual driving.

But another point I often make is this:  if we need a law to ban texting while driving, don't we need also need a law to ban putting on your makeup while driving?  Or one to ban shaving while driving?  Or how about driving with a dog in your lap?

Finally, a legislator has heard my plea and introduced a bill to ban driving with a dog in your lap. 

A Rhode Island Democrat, Rep. Peter G. Palumbo of Cranston, realizing that he might be able to 'save just one life,' has introduced the lap-dog legislation.  Under his proposal, those violating the law would face an $85 fine for their first offense, a $100 fine for their second and a $125 fine for all subsequent offenses.

Rhode Island drivers already have several laws that govern "driving so as to endanger," along with driving under the influence and driving while impaired.  They also have a reckless driving law, which states:

§ 31-27-4 Reckless driving and other offenses against public safety. – Any person who operates a motor vehicle recklessly so that the lives or safety of the public might be endangered, or operates a vehicle in an attempt to elude or flee from a traffic officer or police vehicle, shall be guilty of a misdemeanor for the first conviction and a felony for the second and each subsequent conviction.

This law certainly will cover any type of distraction a dog in the lap would cause the driver.  But Palumbo, apparently infected with TOBAL-itis, was moved by emotion after one (yes, one) constituent complained.

I certainly do not support adding a new law when current laws are sufficient, but at least there is finally a legislator who realizes that there are other types of distractions, besides texting or using a cell phone, that are equally as dangerous and risky while driving.

My hope is that, if they attempt to outlaw all such dangerous actions that could cause us harm, they're realize that a single law, properly enforced, is all that is needed. 

But I won't hold my breath - too many legislators and voters judge performance by how many laws are made, rather than by how much government ensures our right to be free.

Idiocy of Ohio's cell phone texting ban

Earlier this morning I wrote about the passage of a texting ban in the Ohio House, but I thought this particular point about the ban deserved its own post.

There are a lot of onerous facts to consider in the ban, and one of them, as I detailed, is that members of the Ohio House are touting this bill as 'making our roads safer.'

But if safety is such a big concern that we need to have a law, why wait six months to actually enforce it?

From the press releases I received comes this identical wording:

Additionally, House Bill 99 provides that for the first six months after the effective date of the bill, no ticket, citation or summons may be issued for a violation of the new prohibition established by the bill. During this time, only a warning may be issued that provides information about the prohibition.

Huh???

We so desperately need to make our roads safer that we need a new law when we already have one on the books that will suffice, but for the first six months, we're not going to allow a ticket, citation or summons to be issued? We're only going to warn people that the ban exists?

If there is no penalty for violating the law, the law is worthless. And if we need it to ensure our safety on the roads and highways, how will not enforcing the law accomplish this goal?

If having a law that bans texting and driving is enough to keep us safe, won't the fact that people know they'll only get a warning for the first six months encourage them to go ahead and break the law, knowing there are no consequences for doing do?

As Glenn Beck says, get out the duct tape before your head explodes!

And yes, this does qualify for 'stuck on stupid' designation.

Ohio House promotes nanny state with new texting ban

I received two press releases yesterday regarding House Bill 99, the cell phone texting ban, which would "prohibit driving a vehicle while using an electronic communications device to write, send or read a text-based communications."

It was sponsored by Rex Damschroder (R-Fremont) who said upon passage:

“Texting while driving is a danger that has affected many within our communities,” Damschroder said. “We took an important step today toward addressing this issue and making our roads and highways safer.”

In a release from Terry Boose (R-Norwalk Township) was this comment:

“Texting while driving is a distraction that has resulted in many unfortunate automobile accidents that have led to the loss of lives,” said Boose. “House Bill 99 will make our roads safer by banning texting while driving.”

What I don't understand is why Republicans - supposedly the party of limited government and personal responsibility - are rejoicing over the passage of an unneeded law and the expansion of government.

First, there are already laws on the books regarding distracted driving. It's "Operation in willful or wanton disregard of the safety of persons or property" (ORC 4511.20). Texting while driving is certainly covered under that description - but so is shaving while driving, putting on makeup while driving, reading a newspaper while driving, etc., etc., etc. There is no need for another law when one already exists.

Additionally, as my post from October of 2009 (when Toledo was considering such a ban) details:

As author Radley Balko explains, "...we need to get over the idea that we can solve every bad habit with a new law. We can't, and this issue illustrates why."

Because, as he documents, despite the increase in cell phone usage, traffic fatalities and accidents have dropped. Lisa Renee at Glass City Jungle even has a post about Lucas County getting traffic safety grants where the press release from the state touts this fact in Ohio:

In the past three years, Ohio roadway fatalities have decreased to near record lows. There were 1,191 fatalities on Ohio roads in 2008, down from 1,257 in 2007 and 1,239 in 2006.

So why, exactly, do we need a law?

Why indeed?

Secondly, they're not going to stop people from texting and driving - they'll only give police another excuse to pull people over. Also from the October 2009 column, quoting the same author:

These laws aren't about safety; they're about symbolism.

Here are two things these bans will do: They'll give police officers another reason to pull people over, and they'll bring in revenue for the municipalities that aggressively enforce them. I think both are arguments against a ban. You may disagree, but the one thing these bans aren't likely to do is make the roads much safer. And if they won't accomplish that, there's no reason to enact them.

Precisely!

This law is all about emotion, as documented in my November 2009 post on the issue.

'Polls show people want such a ban...'

'Polls show people think texting while driving is as dangerous as drinking while driving...'

Yes, because we all know how accurate polls are and they certainly reflect a well-thought, reasoned argument in favor of a further limitation on our liberties. Why - if the people 'believe' it's needed, it must be! Let's create a law because people believe something that may or may not be true. This is such a terrific method of determining public policy, I can't believe we don't do it all the time!

But there is also a failure to understand the reason we have laws. As District 2 Councilman D. Michael Collins explained to me, "...laws are created to insure and protect the citizens from harm and injury."

And this is the same 'logic' promoted by the two Republicans - that such a law will "...make our roads safer."

As I wrote then,

"...laws are not created to insure and protect us from harm and injury. Laws are supposed to exist to guarantee our rights and freedoms. They protect our right to life by penalizing those who would take it. They protect our right to property by penalizing those who would steal it or damage it.

No amount of laws can ever keep us from injury, and they shouldn't try. But if this is what a councilman believes laws are for, what other onerous, duplicate and freedom-destroying ordinances will he introduce and support in the future?"

I can understand why Councilman Collins would think otherwise, but not our Republican representatives in the Ohio House. They're supposed to be upholding our Republican Party principles and adhering to the Constitution - not promoting the idea that they're 'keeping us safe' merely by passing a law.

In explaining his vote in favor of Toledo's texting ban, Republican District 5 Councilman Tom Waniewski said one of the things impacting his 'yes' vote was that council would be 'taking a 'proactive approach' - if we make it illegal, some people won't do it and that may help the problem.'

Perhaps that's what our state legislators thought as well. But if that's the case, I wonder what other laws they'd support 'if they save just one life...' which is the emotional appeal that so many make when they want onerous, unnecessary laws on the books.

So now we have a law that cannot be enforced and will not keep us any safer on the roads and highways than we were before. As the author Balko said in the article quoted above, it's TOBAL-itis:

TOBAL is short for "There Oughtta Be a Law." Here's the progression of symptoms: Wrenching anecdotes about the effects of some alleged new trend make national news. A panic takes root in the media. Earnest editorialists scrawl urgent pleas for action. Politicians grandstand. Soon enough, we have our new law or regulation. It doesn't matter if the law is enforceable or may have unintended consequences. Nor does it matter if the law will have any actual effect on the problem it was passed to address. In fact, it doesn't even matter if the problem actually exists. The mere feeling that it exists is sufficient.

And so it goes with the panic over texting while driving. I'm not going to defend the act of clumsily thumbing out an E-mail while guiding a 2-ton, gasoline-loaded missile down the highway at 70 miles per hour. That's foolish. Nor will I argue there's some right to drive while iPhone-ing tucked into a constitutional penumbra. I will argue that we need to get over the idea that we can solve every bad habit with a new law.

Thank you Republican House members for reacting rather than thinking and for giving us more of a nanny state with a false sense of security than we had before you saved us from ourselves.

Are we heading to 'pre-crime'? Are we already there?

On Friday, when I filled in for Brian Wilson on NewsTalk 1370 WSPD, we discussed a recent article by Radley Balko, a senior editor at Reason Magazine, about abolishing drunk driving laws.

No - he doesn't think we don't need a law to address what happens when people drive under the influence. He just believes - for logical and common sense reasons which he identifies in the article - that a single law, 'driving while ability impaired,' would address the need and give law enforcement a better tool to address behavior while protecting our liberties.

In the article he writes:

If our ultimate goals are to reduce driver impairment and maximize highway safety, we should be punishing reckless driving. It shouldn't matter if it's caused by alcohol, sleep deprivation, prescription medication, text messaging, or road rage. If lawmakers want to stick it to dangerous drivers who threaten everyone else on the road, they can dial up the civil and criminal liability for reckless driving, especially in cases that result in injury or property damage.

Doing away with the specific charge of drunk driving sounds radical at first blush, but it would put the focus back on impairment, where it belongs. It might repair some of the civil-liberties damage done by the invasive powers the government says it needs to catch and convict drunk drivers. If the offense were reckless driving rather than drunk driving, for example, repeated swerving over the median line would be enough to justify the charge. There would be no need for a cop to jam a needle in your arm alongside a busy highway.

Scrapping the DWI offense in favor of better enforcement of reckless driving laws would also bring some logical consistency to our laws, which treat a driver with a BAC of 0.08 much more harshly than, say, a driver distracted by his kids or a cell phone call, despite similar levels of impairment. The punishable act should be violating road rules or causing an accident, not the factors that led to those offenses.

And I believe he's right. But then I came across this article, "Drunk Driving and 'Pre-Crime'?" by Eric Peters on LewRockwell.com, and the urgency to examine such laws becomes even more apparent.

Peters writes:

There was a time, long ago, when a driver had to actually cause an accident – or at least, do something tangible that gave evidence of actually impaired driving, such as weaving over the double yellow or limping along at suspiciously slow speed. This was the probable cause needed by a cop to pull the suspect over.

Fair enough.

Then in the ’90s we got (courtesy of Clintigula) the criminalization of drinking – irrespective of our actual driving. The mere presence of trace amounts of alcohol in one’s blood became sufficient to arrest a person for “drunk” driving – even though all the person did was run afoul of a notoriously unreliable Breathalyzer machine.

It did not matter that people process alcohol differently; that some people are much better drivers even with a little booze in their systems than others are completely sober. And more besides.

Result?

Most people now equate having “x” amount of alcohol in your system – in ever-declining percentages – with “drunk driving.” It is an epic victory of demagoguery and propaganda.

And it is also by definition an example of pre-crime. You haven’t done anything – but you’re in trouble because of what you might do.

Peters and Balko both bemoan similar situations. Balko talks about check points where every motorist is stopped and checked to see if they've been consuming alcohol - and the willing acceptance by many that this infringement upon their liberties is somehow okay if it keeps a 'drunk' driver off the road. He also examines the way your blood alcohol content (BAC) can vary both over time and individual to individual, noting that an arbitrary number has no relevance whatsoever to your ability to drive.

Peters sarcastically criticizes the way the law treats someone who is drunk, but not even driving:

Consider: You are liable to arrest for “drunk driving” in America today even if you aren’t driving at all. You merely have to be in your car – even if you’re in the passenger seat and the car is parked. People who have had one too many and decided to sleep it off in their car have been arrested for DWI just the same as if they had been straddling the double yellow at 65 MPH with a gin and tonic in one hand and their left leg hanging out the window.

The courts have said that drinking “x” amount of alcohol not only defines “impairment” – it also amounts to intent to drive drunk, whether you’re driving or not. And that intent – imputed, perceived, ginned-up out of nothingness – is what matters.

People often criticize those who claim the 'slippery slope.' But this is one and we need to be aware of the implications.

As Balko explains, it's no longer 'drunk driving' - it's 'drinking and driving,' changing the issue to the act, not the impairment. And because of the issues with blood tests for BAC, some are even suggesting that officers making traffic stops be allowed to forcibly take your blood on the side of the road.

Peters shows how the intrusion into our liberties is already somewhat accepted by the public:

Gun laws – and the TSA – already operate on this principle.

You have no record of criminal misconduct or mental illness. You’re a taxpayer, a responsible citizen. Yet in several states (and of course, Washington, D.C.) you’re assumed to have criminal intent, and thus, denied the right to own a firearm. If you possess one anyway – even if you have done nothing with it to harm or even threaten to harm another person – then you’re subject to being cuffed and stuffed just the same as if you had actually used it to threaten or harm others.

Pre-crime again.

The TSA subjects people at random – and en masse – to rough and humiliating searches, including invasive physical pat downs, just like cops do to felony suspects. Not because of anything they’ve actually done or even hinted they may do but only because the TSA apes impute “terrorist intent” to anyone who desires to travel by commercial airplane.

Ipso facto.

Just like having a drink before you drive makes you a “drunk” driver – no matter how good your actual driving happens to be.

We’ve upended perhaps the most basic concept of Western jurisprudence – that for there to be a crime, or wrongdoing, there must be an actual criminal act, or wrongdoing.

Peters takes it to the next step - or perhaps I should say he slips a bit further down the slope - by speculating what impact such an approach might have on political speech, in light of the recent shootings in Arizona.

Soon, what will matter is what you think – and more, what others (those in power) think your thoughts might lead to.

To give voice to a sentiment such as “the government is corrupt and something needs to done,” will amount to evidence of advocating violence – perhaps even of committing violence – much as a motorist who has consumed an arbitrary amount of alcohol is ipso facto a drunk driver.

And he's probably correct. We've taken the first steps toward that with 'hate crimes' where you are presumed more guilty of, say, murder if you can be proven to have 'hated' something about your victim. Or rather - hated something defined by government about your victim - like race, gender or sexual orientation. That you killed your neighbor because you hated that he wouldn't control his barking dog is somehow not as terrible a crime as if you killed him because he's gay.

Already - what you were thinking when taking a life is of more importance than actually taking a life.

In America, we've had discussion of banning 'hate speech' though so far, our First Amendment has been ruled to protect such comments. But other countries, many used by our politicians as examples we should emulate, do have laws against such things.

So is it too much to think that laws criminalizing such thoughts and speech - a 'pre-crime' sort of approach - are coming our way? I shudder to think....

Emotion rules the day with 'texting-while-driving' law

Earlier this month, I wrote an email to all members of Toledo City Council asking them to address the issues raised in this Cato Institute article about texting-while-driving laws.

From 12 members of council, only three bothered to respond.

One was District 2 Councilman D. Michael Collins, the sponsor of the ordinance, whose primary reason for the law appeared to be based upon a poll. He wrote:

I would like to share with you that on November 2, 2009 UPI reported that a poll was conducted by the New Your Times and CBS with 97% of the respondents backing a prohibition for sending text messages while driving.The poll report went on to say that 50% of the pollsters defined texing while driving as equally as dangerous as driving while intoxicated.

Yes, texting while driving CAN be very dangerous - so can changing the radio station or holding your dog in your lap while trying to drive. But a poll should not be a reason to put onto the books a law that cannot be enforced. And Collins never answered any of the questions raised by the article about enforcement.

Additionally, he seemed to have a very flawed view of what laws are supposed to do.

In my opinion, our Democracy and freedoms are in fact law based, and the laws are created to insure and protect the citizens from harm and injury.

We're a Republic, not a democracy - for a reason. But laws are not created to insure and protect us from harm and injury. Laws are supposed to exist to guarantee our rights and freedoms. They protect our right to life by penalizing those who would take it. They protect our right to property by penalizing those who would steal it or damage it.

No amount of laws can ever keep us from injury, and they shouldn't try. But if this is what a councilman believes laws are for, what other onerous, duplicate and freedom-destroying ordinances will he introduce and support in the future?

District 6 Councilwoman Lindsay Webb wrote to say she was voting no on the ordinance. She did not address any of the issues I asked about, but she did give her reasoning in that she believed the state should handle the issue. While I didn't like her lack of response to the issues surrounding the proposed law (whether it be a local one or a state one), I appreciated her response, her reasoning and her vote yesterday which was, indeed, no.

District 5 Councilman Tom Waniewski was the last of the three members of council to respond. He wrote:

I've had some discussion with D. Michael Collins, who is sponsoring this.
It is my understanding the ordinance will not be acted on until our last council meeting in November. As you may have read some time ago, I was not in favor of such legislation because current "Reckless Operation" laws exist in the city. After receiving much email on the matter, and with the amount of texting that I personally do while driving, I am convinced there is some merit in the approach, but I'm not sure if this is the way. For example, would adding, "including text messaging...." to the existing reckless operation laws suffice. Or a resolution strongly urging the police department to enforce reckless driving laws, (including putting lipstick on while driving) be the best approach. I did learn the following:

- in the past 12 months for violations of TMC 331.23 "Failure to Control; weaving; full time attention"
1334 tickets were issued under this section of which 241 specified subsection (c)- full time attention.

I don't have the numbers at my finger tips for reckless operation but it was about twice that number for the past 12 months.

Based upon this, I expected Waniewski to offer some amendments. I don't know whether or not he did, but his vote was 'yes' on the existing ordinance.

This morning, he was interviewed on WSPD and he said three things impacted his decision:

1) the number of accidents cited under reckless operation and 'full-time attention.'
2) taking a 'proactive approach' - if we make it illegal, some people won't do it and that may help the problem.
3) the number of communications (email, phone calls, letters) in favor of the law.

He also said he tried to look at the facts and not the emotional aspects of the issue. But if that's the case, he could have addressed my questions about the factual problem of enforcement.

As for the increase in the number of citations that *might* be related to texting, all I can do is ask: isn't that an indication that the existing laws are sufficient to the cause? If more people are texting and driving while distracted, and the police are issuing more citations as a result, isn't that proof that the current law is addressing the problem?

As for the 'proactive approach,' I wonder about what other laws he'd support 'if they save just one life...' which is the emotional appeal that so many make when they want onerous, unnecessary laws on the books.

But the one thing that disappoints me most is Waniewski's third point - not because he responded to the public position, but because the public position was so ignorant of the facts - thinking that a ban on texting while driving was enforceable in the first place - and the majority of freedom-loving, limited government individuals who obviously didn't take the time to express their opinion on the issue.

Those of us who did look at the facts and logic of the issue came to the conclusion that this law was not needed. But we did not 'overwhelm' the members of city council with our opinion so they acted based (at least partly) upon the feedback they did get.

So the ordinance passed by a 10-2 vote with District 1 Councilman Michael Ashford casting the other no vote, and it will go into effect on January 1, 2010. And I'm sure on that day, everyone in the city will suddenly change their habits and we'll all be safe from harm forever, thanks to D. Michael Collins, Tom Waniewski and eight other members of council.

Texting while driving - UPDATED

UDATED with responses from council members at the bottom of the post.


Toledo is considering a 'texting while driving' law - to prevent it, not encourage it, though in Toledo you can never quite be sure...

I've sent an email to all members of city council asking them to address the issues raised in this Cato Institute article about the issue, saying the law if pretty much unenforceable.

I expect that I'll hear back from a few of the members - and I'll share them with you by adding updates to this post when I do.

What I don't expect, however, is a quick response from any of them because I believe the article raising questions they've not addressed - so now they have to.

Well, they could ignore the email and questions, so I suppose they don't 'HAVE' to...

But proper diligence in deciding whether or not to implement a law says that you should consider how the law will be enforced and what challenges will be brought against that could, especially in this instance, make the law irrelevant.

Additionally, if it's so bad to read and/or send a text while driving, is it not equally distracting and dangerous to do a host of other things? Will city council be creating regulations that outlaw all those things as well?

I didn't hear any answers to that question - just the whole 'if it can save one life' mantra - the emotional appeal - that too many politicians resort to when logic fails them.

I hope you'll take the time to read the article, which I've previously posted on my blog, and then contact your city council members and demand they tell you how they're going to deal with the issues raised in the article - and all the other dangerous things people do while driving.

You can then leave a comment here for all to see.

We need to hold our elected officials accountable for their actions and that includes having them address such concerns about laws they are going to impose upon us.

UPDATE: Responses from city council members

1) from Lindsay Webb on 11-06-2009 at 9:23 a.m.

"I am going to vote no. I think this should be handled at the State level."

2) from D. Michael Collins on 11-09-2009 at 1:49 p.m.

Mrs. Thurber.......thank you for your e mail concerning "Texting While Driving", please be advised that we will not be voting on this matter at our Council meeting on November 10, 2009. I will ask to have it relieved from my Law and Criminal Justice Committee and we can discuss it again on November 17, 2009 at our Agenda Meeting and then vote on it at our November 24, 2009 Council Meeting. In the event you would like to be at the Agenda Meeting and provide input I would welcome your presence.

I would like to share with you that on November 2, 2009 UPI reported that a poll was conducted by the New Your Times and CBS with 97% of the respondents backing a prohibition for sending text messages while driving.The poll report went on to say that 50% of the pollsters defined texing while driving as equally as dangerous as driving while intoxicated. The poll was conducted from October 5 - 8 and 829 adults responded, with a margin of error of 3 percentage points.

In conclusion, I do understand the argument that we already have laws in place to cover this issue. The traffic code most frequently referred to is Reckless Operation of a Motor Vehicle. To beg the question is operating a motor vehicle when impaired/intoxicated a reckless act and I would suggest it would be defined as such. Then why would we need a traffic statue which specifically addresses this issue, the reason is the act of operating a motor vehicle while impaired/intoxicated becomes the element of the offense and thus removes a subjective opinion from the trier of law. I will end by saying the police department will not carry on a crusade to cite the violators, however this will cause under the force of law the ability to subpoena records from the carrier which may be used in both criminal as well as civil litigation.

Respectfully;

D. Michael Collins

This a follow-up response after I raised questions about the process of using a subpeona; the questionable validity of a NYT's poll to Toledo and the enforcment questions I'd previously raised; and the comparison to a DUI when the texting ordinance is a minor misdemeanor:

Mrs. Thurber.......In response to your e mail I respectfully disagree with your assumption concerning the relevance of the New York Times/CBS poll. My point is a law with specificity is preferable over a general assumption and may not have the force of law when the investigating agency seeks to secure by subpoena phone records. To be case specific the execution of a subpoena defining a specific element of an offense, based upon probable cause is in the communities best interest as it provides evidence which can be used in the furtherance of justice.

I terms of enforcement, I am not suggesting that reckless operation of a motor vehicle is sufficient to command a response to a subpoena, having said that a specific law or element defined as texting would have the force of law attached. The use of a subpoena would be determined by the nature of the event and the need for the record. In the event of a serious injury or fatal accident I can assure you that a carrier record would go a long way to help the State/City or Plaintiff in proving the case.

In closing, speeding, running a red light, running a stop sign and most all other traffic offenses are minor misdemeanors, In this case the second offense becomes a 3rd degree misdemeanor and the third or more becomes a 2nd. degree misdemeanor. In my opinion, our Democracy and freedoms are in fact law based, and the laws are created to insure and protect the citizens from harm and injury.

D. Michael Collins

3) from Tom Waniewski on 11-9-09 at 8:21 p.m.

I've had some discussion with D. Michael Collins, who is sponsoring this.
It is my understanding the ordinance will not be acted on until our last council meeting in November. As you may have read some time ago, I was not in favor of such legislation because current "Reckless Operation" laws exist in the city. After receiving much email on the matter, and with the amount of texting that I personally do while driving, I am convinced there is some merit in the approach, but I'm not sure if this is the way. For example, would adding, "including text messaging...." to the existing reckless operation laws suffice. Or a resolution strongly urging the police department to enforce reckless driving laws, (including putting lipstick on while driving) be the best approach. I did learn the following:

- in the past 12 months for violations of TMC 331.23 "Failure to Control; weaving; full time attention"
1334 tickets were issued under this section of which 241 specified subsection (c)- full time attention.

I don't have the numbers at my finger tips for reckless operation but it was about twice that number for the past 12 months.

TOBAL-itis infects Toledo

No - it's not related to Swine Flu - but it's as infectious and as insidious as any physical disease...

Cato Institute has a terrific article, "There's No Way to Enforce a Texting While Driving Ban," explaining the illness and it's a must-read for all Toledoans ... well, everyone else, too.

Forget flu season. Several times per year, America comes down with a national case of TOBAL-itis.

TOBAL is short for "There Oughtta Be a Law." Here's the progression of symptoms: Wrenching anecdotes about the effects of some alleged new trend make national news. A panic takes root in the media. Earnest editorialists scrawl urgent pleas for action. Politicians grandstand. Soon enough, we have our new law or regulation. It doesn't matter if the law is enforceable or may have unintended consequences. Nor does it matter if the law will have any actual effect on the problem it was passed to address. In fact, it doesn't even matter if the problem actually exists. The mere feeling that it exists is sufficient.

And so it goes with the panic over texting while driving.

As author Radley Balko explains, "...we need to get over the idea that we can solve every bad habit with a new law. We can't, and this issue illustrates why."

Because, as he documents, despite the increase in cell phone usage, traffic fatalities and accidents have dropped. Lisa Renee at Glass City Jungle even has a post about Lucas County getting traffic safety grants where the press release from the state touts this fact in Ohio:

In the past three years, Ohio roadway fatalities have decreased to near record lows. There were 1,191 fatalities on Ohio roads in 2008, down from 1,257 in 2007 and 1,239 in 2006.

So why, exactly, do we need a law?

Balko also raises a point I've made in the past about other things that are just as distracting:

There are countless other driver distractions that we'd never think of banning, from having kids in the back seat, to eating or drinking while driving, to fumbling with the radio. Certainly, it's foolish to type out text messages behind the wheel, but what about merely reading from your phone?

Are you more impaired following MapQuest directions from your Palm Pre while driving than reading them from a sheet of paper? What if you're looking at a GPS navigation device that's only slightly larger than your cellphone? What if the GPS system is on your cellphone?

He also wonders how to enforce the law:

Maryland just passed a texting ban, but state officials are flummoxed over how to enforce it. The law bans texting while driving but allows for reading texts, for precisely the reasons just mentioned. But how can a police officer positioned at the side of a highway tell if the driver of the car that just flew by was actually pushing buttons on his cellphone and not merely reading the display screen? Unless a motorist is blatantly typing away at eye level, a car would need to be moving slowly enough for an officer to see inside, focus on the phone, and observe the driver manipulating the buttons. Which is to say the car would probably need to be stopped — at which point it ceases to be a safety hazard.

But let's say you're OK with a ban on reading cellphone messages, too. How would you write that law? Would you prohibit so much as a glance in the general direction of a cellphone while driving? Should we mandate that cellphones be stored out of the driver's sight while the car isn't in park? What about other things that might distract him from the road, like navigation systems? Shiny objects? Pretty girls in the passenger seat? How would you prove a driver was looking at a cellphone and not something near it?

How, indeed? And if the person challenges the citation in court, with no way to prove the crime, the case will be dismissed ... resulting in a waste of everyone's time, money and effort.

Balko hits the nail on the head with his conclusion:

These laws aren't about safety; they're about symbolism.

Here are two things these bans will do: They'll give police officers another reason to pull people over, and they'll bring in revenue for the municipalities that aggressively enforce them. I think both are arguments against a ban. You may disagree, but the one thing these bans aren't likely to do is make the roads much safer. And if they won't accomplish that, there's no reason to enact them.

Precisely!

Which is why Toledo will probably enact the law, despite the logic and reason of not doing so. But then, that would require our city council members to actually think about and consider these points, which I doubt most of them will do. They'll be too busy claiming credit for 'making us safe,' destroying our liberty along the way.

Basic questions to ask before implementing a new law

"[W]here there is no law, there is no liberty; and nothing deserves the name of law but that which is certain and universal in its operation upon all the members of the community." ~ Benjamin Rush

I recently read Leslie Carbone's book, "Slaying Leviathan: The Moral Case for Tax Reform," and while it deals with the issue of taxes and developing a better tax system, it includes some questions that I think are pertinent and should be asked whenever a new law is considered.

I was thinking about this in relation to Issues 1, 2 and 3 on the November ballot, as well as the texting while driving ordinance before Toledo City Council.

What I'd like to know is this: who has asked - and answered - these questions (paraphrased from the book) on these proposals:

* What does the Constitution say?
* What are some of the unintended consequences? Does it promote dependence or laziness? Does it make immoral behavior easier or attractive?
* Does it pervert justice?
* Is it true reform or just tinkering? Will it increase or decrease complexity?
* Is it impartial, simple, transparent?
* Is it a proper function of government? Is it a good idea? Can the government do it well? What is the track record in similar areas?
* Does it inhibit economic growth?
* Is the government likely to keep its promises regarding the matter?
* Will it expand the power of the state? Does it set up a new state apparatus that could do damage to individuals, liberty or freedom - sooner or later?
* Will it erode privacy - financial or otherwise?
* Is it the best solution or just the quickest fix.

And my question: how does the proposal increase freedom, liberty and encourage personal responsibility? The goal, after all, is freedom.

Before you vote on the state-wide issues, ask yourselves these questions. And before Toledo City Council passes a new law, ask the members of council what the answers to these questions are - or if they've even considered these questions as part of their deliberations on the law.

We'll have a better city, county, state, and nation, if we think about these things before, rather than after, laws have been put into place.

And think, too, about this point: when was the last time a government actually repealed a law - voluntarily???? If we wait until after laws are passed, it's too late.

Quote of the Day

Toledo City Council would be wise to remember this quote as they consider another law to prevent behavior they don't like.

"We lay it down as a fundamental, that laws, to be just, must give a reciprocation of right; that, without this, they are mere arbitrary rules of conduct, founded in force, and not in conscience." --Thomas Jefferson

We don't need a law to prohibit texting while driving because we already have a law to cover that when it is a problem - it's called distracted driving and it's already illegal. Yet, despite already having a law, people still do it.

This new law won't prevent texting while driving any more than speed limits prevent speeding. And it leads to the question of whether the city is going to try to create a law for everything that could distract a driver (like putting on makeup, eating, having a dog in their laps, shaving, fiddling with the radio/cd player, etc...) or just rely upon the law already in place that clearly imposes a penalty for not paying attention while driving.

Finkbeiner wants to ban texting while driving

This just in via email from the Mayor's office:

FOR IMMEDIATE RELEASE
Friday, August 21, 2009

Mayor Finkbeiner submits ordinance to prohibit text messaging while driving.

Today at 1:00 p.m., Mayor Finkbeiner and City Officials will hold a press conference to announce an ordinance prohibiting the use of text messaging devices while operating a vehicle. The press conference will be held on the 22nd Fl. Conference Room of Government Center.

The media is respectfully asked to attend.

This is insane!

No - it's not because it's a really, really, really bad idea to try to read and send text messages while driving ... it is!

But there is already an ordinance on the books that deals with such circumstances. In fact, it's a catch-all so that all sorts of things you shouldn't do while driving are against the law without having to name each and every one. It's Toledo Municipal Code 333.02

333.02. Reckless operation on streets, public or private property.

(a) No person shall operate a vehicle on any street or highway without due regard for the safety of persons or property.

(b) No person shall operate a vehicle on any public or private property other than streets or highways, without due regard for the safety of persons or property.

And if that's not enough, there's also a similar law for the entire state in the Ohio Revised Code, under which law enforcement office can cite:

4511.20 Operation in willful or wanton disregard of the safety of persons or property.

(A) No person shall operate a vehicle, trackless trolley, or streetcar on any street or highway in willful or wanton disregard of the safety of persons or property

So why do we need this law? And if we need a law to ban this particular action, where are the laws to ban other equally dangerous actions like: eating while driving, lighting a cigarette while driving, putting on make-up while driving, shaving while driving, changing your clothes while driving (yes, I've seen that before!), holding your dog in your lap while driving, etc...

Before creating new ways to make criminals out of people, let's just enforce the laws we have.

But maybe, not everyone who texts while driving is dangerous. Could that be?

Yes, it is possible.

The problem is not that texting is causing too many accidents because, as I've demonstrated, if you're not paying attention to your driving that's already a crime and you can be penalized.

The problem is an issue of prior restraint. We don't want you to *possibly* cause an accident, so we'll censure your behavior ahead of time. We'll make the action a crime, rather than punish for the outcome. We'll control what you do and how you do it so you don't maybe do something that could be a problem.

This is the same logic used by liberals in just about every other circumstance where they seek to tell you how to live and what to do - despite your ability to make such decisions on your own. Whether it's soda pop taxes, smoking bans, seat belt laws, helmet laws, and on and on and on ... they'll tell us it's for our own good - as if some politician knows what is or is not best for you and your family, even when they've never met you.

Or they'll say that government picks up the cost for *some* individuals when they are hurt as a result of such behavior. Well, the answer to is to not let such individuals off the hook when it comes to paying for the consequences of their actions. If you're hurt more severely because you didn't wear a seat belt or a helmet, you'll get your treatment for your injuries, but you'll be responsible for paying - no more relying upon government (taxpayers, that is) for payment because you don't have a job - you or your family will just be in debt for the rest of your life.

A few well-publicized incidences of just such consequences and people will make better choices on their own. Most all people who know they'll be responsible for the consequences of their actions make better decisions. And those who don't make the good decision quickly learn not to make the same mistake twice when they are held responsible for the outcome.

This is a very steep slippery slope and, as I've said before, I think we're already at the bottom.

This is about control and behavior modification - and it's about time citizens told the government (and all the special interest groups such legislation caters to) to butt out! We don't need government to create new laws that turn us into criminals because of our actions, especially when such actions are not hurting anyone.

And doesn't Carty have anything better to do? You know, like an $8 million budget deficit????? Or is he trying to emulate Nero, fiddling while Toledo burns?