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Sunday, June 19, 2011

Ind. Law - More on "Enforcement Of Indiana Texting Ban Questionable: Law Becomes Effective July 1"

Updating this ILB entry from June 2nd on HEA 1129, Lisa Trigg of the Terre Haute Tribune-Star reports today in a long story headed "Getn tuf on txting: Law banning text and email while driving takes effect July 1."

The new IC 9-21-8-59, effective July 1, 2011, reads:

Sec. 59. (a) A person may not use a telecommunications device to:
(1) type a text message or an electronic mail message;
(2) transmit a text message or an electronic mail message; or
(3) read a text message or an electronic mail message;
while operating a moving motor vehicle unless the device is used in conjunction with hands free or voice operated technology, or unless the device is used to call 911 to report a bona fide emergency.

(b) A police officer may not confiscate a telecommunications device for the purpose of determining compliance with this section or confiscate a telecommunications device and retain it as evidence pending trial for a violation of this section.

Some quotes from today's story:
Police officials are acknowledging that it can be tricky to catch someone in the act of texting, since most cell phones can be used for a variety of functions in addition to text or email messaging.

“We’re not gonna send out guys specifically to watch for that,” Terre Haute Police Chief John Plasse said of the new law, “but if we see people obviously doing that, then we can pull them over.”

Plasse said he has seen drivers with both hands resting on the steering wheel while their thumbs are quickly typing a message into a phone. That is the obvious type of violation that officers will be looking for, he said.

“It’s going to be difficult to enforce,” he acknowledged, especially if a driver denies texting or emailing, since the law prohibits an officer from taking a phone to see what the suspected texter was doing.* * *

While many Hoosiers agree it is dangerous to text while driving, and that something needed to be done to protect the motoring public from drivers distracted by texting or emailing, the wording of Indiana’s law may hint that common sense took a wrong turn on the road to safer travel.

After all, if cell phones are the source of the texting and emailing problem, why not just ban all cell phone use, including phone conversations? * * *

“I don’t think anyone disagrees that texting while driving is a bad thing,” said Joel Schumm, professor at Indiana University School of Law[-Indianapolis], about the “noble and wonderful” intent of the new law to reduce distracted driving. “But the wording of this law is open to challenges.” * * *

“I think it started broader,” Schumm said of the law as it was originally written to eliminate all use of cell phones. “The version now is illogical. You can play Angry Birds or be Googling or reading a book on your Kindle, but you can’t send or receive text messages or email.”

The biggest problem that Schumm sees for the law, though, is the legal challenges that will come for arrests that came about as a result of a texting citation.

“I think there will be challenges if police pull you over on the pretext of texting, and the officer sees drugs or guns in the car,” he said, explaining that a defense attorney will likely challenge how the arrest came about.

Schumm predicts that in future legislative sessions, Hoosier lawmakers will likely consider broadening the law to say that drivers can’t use cell phones at all.

Vigo County Sheriff Greg Ewing said he agrees that, just like with the seatbelt use law enacted several years ago, some additional legislative tweaks are likely in the future before both police officers and the public become comfortable with this law.

[More] Re the provision of the statute that reads:
(b) A police officer may not confiscate a telecommunications device for the purpose of determining compliance with this section or confiscate a telecommunications device ...
a reader writes:
"I think cops might ask for consent to see the phone....like they do to search for all sorts of things. Hopefully people have the sense to say no."

Posted by Marcia Oddi on June 19, 2011 10:35 AM
Posted to Indiana Law