Legal Commentary

California’s make-believe car phone safety law

By David A. Giacalone

Sometimes, it’s really hard to avoid cynicism over phony politicians, greedy special interest groups, and — let’s be frank — the spoiled, self-absorbed American public. Case in point: the so-called safety law that goes into effect in California tomorrow, July 1, 2008, relating to the use of cell phones while driving. See Cal. Vehicle Code, Division 11, Chapter 12, Article 1, Section 23123; Cal. DMV: Wireless Telephone Laws FAQs.

Summary: Unless you are using the phone to make an emergency call to the police, a doctor, or other emergency service provider, no hand-hand cell phone may be used by the driver of a vehicle after July 1, 2008, in California. Also, drivers under 18 (who apparently have much less political clout than their elders) are quite annoyed, as they may not use any cell phone while driving, except for emergencies.

Which leaves this old cynic asking:

What were these guys thinking (or trying to achieve or avoid), when they decided to permit the continued use of hands-free devices while driving? They had to know what study after study has demonstrated: hands-free car phoning is just as dangerous as the hand-held variety, because the problem is mainly one of distraction (and “inattention blindness“), and not the number of hands on the wheel. DWP — driving while phoning — leaves the driver as incapacitated as does DUI, with slower reaction times, longer stopping distances, and poorer judgment. Plus, allowing hands-free calls is very likely to increase the amount of DWP. See., e.g., “Industry Pushes Headsets In Cars, Agency Sees Danger Hands-Free Cellphones May Be No Safer Than Hand-Held” (The Wall Street Journal, July 19, 2004); “Hands-Free Cell Phone Use Takes a Hit” (Cars.com, June 9, 2005, orig. pub. in Detroit News); “Cell Phone Users Drive Like Old Folks” (Univ. of Utah Press Release, Feb. 1, 2005).

J. Craig Williams explained the situation pithily at his weblog earlier this month (May It Please the Court, “Driving While Talking: California’s Newest Crime,” June 11, 2008):

“No more driving with one hand on the wheel, one hand on the cell phone and your mind somewhere else.

“Well, you’ll still be able to have your mind somewhere else, just not with one hand on the cell phone.”

As I said in a Comment at Craig’s weblog: “It is disappointing to see that California has adopted the unprincipled compromise of allowing hands-free phoning (in order to make believe the politicians are serous about safety) . . . Indeed, allowing hands-free DWP merely makes it possible for irresponsible drivers to find something else to do with the extra hand.”

When you look at their law enforcement scheme, the seriousness of the California cell-phone driving laws is further in doubt: The fines are relatively small ($25 for the first offense and $50 for subsequent convictions); no points will be taken off your license; and the Highway Patrol has announced that they won’t be pulling people over for merely using hand-held cell phones, although the law permits them to do so. See “Drivers, retailers prepare for state law on cell phones” (Marin Independent-Journal, June 23, 2008). Experience in other States, such as New York — where scofflaws predominate — makes it clear that immediate, strict enforcement is essential, to have a significant chance of achieving a serious level of compliance. When it comes to DWP, a safety-conscious Governor needs to be a Terminator, not a feel-good Kindergarten Cop.

update (11 PM, June 30,2008): I just learned that Washington State also bans the use of hand-held cell phones while driving as of July 1st. Here’s a good quote from an AP article:

But traffic-safety advocates say the new laws will have little impact.

“Laws like Washington’s probably will have a big effect on making people feel good about passing a law but zero effect on highway safety,” said Russ Rader, a spokesman for the Virginia-based Insurance Institute for Highway Safety.

However, the new laws could have a big effect on businesses that sell headsets and related projects.

Admittedly, I’m a little obsessed by this topic (which teaches us so much about the state of the American psyche and its politics), and have been writing against DWP for a long time. It was, in fact, the topic of both my very first piece of paid internet punditry: a March 2000 “Advocate This!” column for the now-defunct Prairielaw.com, entitled “Shut Up and Drive” (opening image), and a major op/ed piece written for the Schenectady Sunday Gazette (”Car-phone ban is easy way out,” May 20, 2001), at the time when New York’s then-Governor George Pataki had proposed to ban hand-held car phones.

Because I am greatly disappointed that the trend-setting largest state in the Union is heading down the same sham-safety road as New York, New Jersey and D.C., and because neither of these gems is available currently online, I’m going to indulge my editor’s prerogative and quote major excerpts from each piece below the fold.

In the Prairielaw piece, I expressed the hope that politicians would reject the “easy compromise” of banning only hand-held phoning by drivers, which would let them avoid a larger confrontation with the telecommunications industry and with cell-phone-addicted voters. My argument then is still valid and been validated by many studies: Banning hand-held phones will do nothing to lessen the inherent distraction caused by a mobile telephone conversation. For example, I argued in 2000:

“Studies show no safety advantage using hands-free phones. Banning hand-held phones may in fact make the problem worse by encouraging more car phone calling. Judging from its many ads for hands-free devices, the car phone industry might actually favor a ban on hand-held devices, as it would force millions to buy new models to make billions of additional phone calls from their cars.”

Sorry to say, that prediction has come true in car and car-phone happy California. See, e.g., “Hands-free law boosts headset sales” (Marketplace Report, npr, June 23, 2008); “Top Brands Leverage Hands-Free Cell Phone Laws” (OnLineMediaDaily, June 23, 2008); “Merchants see hot sales for hands-free devices” (Marin Independent-Journal, June 23, 2008)

Actually, the problem is far worse than it seemed just a decade ago. Back then, cell-phoning was something that most drivers only did occasionally and quickly. Now, a large segment of the American driving public are chronic phoners, making long, serial phone calls. By 2005, Americans chalked up a billion minutes a day chatting while driving, and the numbers have surely climbed dramatically since then, as many drivers have grown to view DWP as natural and their birthright. The trend is further exacerbated by all of those auto manufacturers that are now intensely advertising hands-free devices pre-installed in their vehicles, and cell-phone service providers offering plans with virtually unlimited calling time.

And, note: “A recently completed study points to a separate potential danger: Even truly hands-free phones can be time-consuming to dial. It found that headset users with voice-activated dialing took an average of 37 seconds to dial their calls versus 20 seconds for those who picked up the phone and punched the buttons.” Also, “[T]he Swedish National Road Administration installed cameras in 40 cars and found that drivers wearing headsets drove faster than drivers holding their phones. Braking time slowed by as much 45% for cellphone users, with no improvement for those wearing headsets.” See Agency Sees Danger above.

It is the intensity of the distraction — you have to process interactive communication without visual clues — and the duration of the calls that make DWP far more dangerous than the strawman comparative activities often pointed to by car-phone advocates, such as eating a hamburger, switching the radio channel or CD track, or even putting on mascara. Of course, as I noted in 2000,

“The reality, however, is that politicians don’t need more data on car phoning, they need more backbone.”

In 2004, National Highway Traffic Safety Administration’s administrator Jeffrey Runge said “The thing that disturbs me is that we have states and local municipalities making rules that basically give hands-free phones a free pass as being safe. That’s not good policy.” In addition, my Gazette op/ed piece argued:

“Even more worrisome, passage of this legislation will almost certainly preclude additional car-phone bans for many years to come. I can already hear the lobbyists and their legislative mouthpieces decrying the unfairness of any additional ban, because of the good faith ‘investment’ of their customers and companies in the ‘legislatively-approved’ hands-free devices.

” . . . This is clearly an instance where having no law is better than having a bad law.”

Please click on the “more” link below to continue reading excerpts from my prior attempts to explain why a hand-held-only ban is “phony safety legislation,” that is not only dangerous, but actually worse than no ban at all.

in the middle
of the distraction ?
an interruption

???????. by dagosan

Full post as published by f/k/a . . . on June 30, 2008 (boomark / email).