THE PROHIBITION OF TEXTING AND DRIVING – FLORIDA HOUSE BILL 41
A study was done recently that claims that texting while driving is as dangerous as driving while impaired. It hit the news wire and went viral. As soon as that happened I knew it would be a matter of days before some state legislator rushed some bill out to make texting and driving against the law. This type of behavior by our legislators caused the “one withhold and your done” legislation to pass right after the Miami Herald had an article about people with felonies getting multiple withholds of adjudication – as if the journalist had a clue about the legal system. The bottom line is that our legislators rush out “crap” laws at a drop of a hat if it will allow them to say “I pushed for [fill in the blank].”
Anyhoo, HB 41 is the Florida House Bill that is set to modify section 316.304 (currently titled “Wearing of Headsets”) of the Florida Statutes some time next year when it passes – and it will pass without a single objection. Once passed the new title will read “Use of listening or communications devices: restrictions.” The main change to the statute states the following – No person shall operate a moving motor vehicle while reading, manually writing or typing, or sending a message on an electronic wireless communications device. Seems innocuous enough – just like the new seat-belt law that allows law enforcement to pull you over if they “suspect” you are not wearing your seat-belt. I guess now law enforcement will be allowed to pull us over if they “suspect” we are texting while driving – and why not! It is a dangerous activity according to that study, right?
Long ago we had a group of people get together that agreed that the force of government had to be restrained if said government was going to be from, by, and for the people. I know I’m mixing some history there but the underlying theme is the point. Along these lines they put in a restriction on government intrusion into our lives and they called it the Fourth Amendment to the Constitution which was also adapted to our state constitution in Article I, Section 12. The gist of all this effort way back when is that the government was not going to be allowed to intrude into our lives absent a warrant or unless you were dumb enough to commit a common law crime.
Well, flash-forward to today and we notice (1) the whole idea of the warrantless search prohibition has been watered down, and (2) if you didn’t know much about it to begin with, so much the better – at least from the perspective of the government. But wait! The government is made up of people that share in our freedoms and in our desires too, right! Yeah, forget that notion. Makes logical sense until you put in the one illogical factor – people, and the one desire – power. Today we have very little privacy in our cars. The law allows us to get pulled over and stopped, a/k/a seized, by law enforcement anytime they can write up a sufficient probable cause statement (or at least fabricate one on the fly at an infraction hearing). Am I saying that all law enforcement officers make up this stuff? No. Just pointing it out that it is just that easy to do. There are no real safeguards in this area. If a police officer testifies that he saw you run a red light – you pretty much ran a red light.
So what does all this have to do with HB 41? Well, it says that law enforcement can stop you if they have probable cause that you are texting while driving. Today just about everyone has a cell phone and just about all cell phones are capable of texting. Not much difficulty there to describe a probable cause situation allowing law enforcement to pull you over for “suspected” texting – unless you just happened to forget your phone that day. I don’t know what the new whacked-out terminology law enforcement will come up with but I suspect it will include such language as “observed,” “focusing in a downward fashion,” and “manually manipulating a device with furtive shoulder movements.” All this can and will get you pulled over once HB 41 passes into law.
Of course these movements could describe you writing without using an “electronic wireless communication device.” Or maybe you are packing that blunt! Maybe you are putting in your destination on your GPS device – is a GPS device also an “electronic wireless communications device”? There will be a lot of confusion and a lot of time spent trying to figure out this confusion but one thing will be constant – law enforcement/government will be getting more intrusive.
So what’s the point? The point is that not everything we think is bad should be prohibited by laws. All new prohibitive criminal and traffic laws have in common is that they all allow law enforcement another excuse to intrude in your life. Can’t we, as people, be entrusted to stop texting and driving on our own? Can’t we shame ourselves out of this behavior? Many will say that we can’t but their alternative is trust in the law. Having worked “in the law” for several years (and I think my colleagues will agree with me) I am not big on the trust factor. Moreover, if texting and driving is dangerous, isn’t just about anything we do while driving dangerous? Should everything be prohibited? Does government really need to protect us from ourselves? Do WE need to be protected from ourselves?
Other problems arise too. I touched on it a bit above. What if you are programing your GPS or writing a note on “paper”? You may get pulled over for that. Something not prohibited yet whose perception gives rise to probable cause for a texting violation and once you tell the police officer what you were doing he writes you a careless driving ticket. Inconvenience, stress, and more money being paid out of your pocket to the state and we conclude it is all in the name of safety. Well, I don’t buy it.
“You wouldn’t feel that way if you were hit by someone who was texting, Eric.” I can hear that already. Will this law really stop texting and driving? Will it really make us any safer? Or, as I believe, will it just allow the government another avenue into our lives? We still have people drinking and driving and that law has been on the books for decades. People are hurt everyday by drunk drivers despite the fact we continually make punishments more severe for the driver who cannot maintain a single lane. Somehow we believe as long as something is against the law we are safe from it. Are we really so naive? People will continue to text and drive even after this bill becomes law. There won’t be any shame in it – instead it may now be a challenge, something that’s cool – maybe, but no shame.
I don’t believe in government solutions to everyday problems. Yes, we need laws to punish robbers but we don’t need a new law for every new behavior. Wearing seat-belts was once a choice and we survived. Mandating the wearing of seat-belts to keep FHP troopers from having to witness what a body looks like after it is thrown through a windshield – that I can understand – to protect us from ourselves – I call BS. The bottom line is this – all I know is that another law will be made that will allow the state to intrude into our business just that much more easily and no one will say anything. Next year another law will be passed and the following year another law. It just continues and no one really seems to care.
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This is the Blog post for Eric J Dirga PA. To the right you may see a list of “Current Blogs.” Feel free to comment on any of them – I will respond. I really don’t think what I write or think about is that profound or that anyone in their right mind would care to take time to read it, however I do have a website that I am personally invested in and a blog definitely helps keep it humming. Please bear this in mind as you peruse the ramblings (I would much rather have a blog on Scuba Diving but it don’t pay da bills). Visit http://www.ejdirga.com for more information.
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