Legal Commentary

Maureen Dowd has a column in the New York Times today criticizing the practice of using a cell phone while driving (regardless of whether it is hands-free).  In fact, she begins the column by telling a personal story of how, driving home from visiting her mother in the hospital late at night, she checked her cellphone messages, ran a red light and caused a very minor accident.  And although she swore never to use a cellphone while driving again, she still did.

The rest of the column brings up the recently released research (collected by Public Citizen here) by the National Highway Traffic Safety Administration (NHTSA) demonstrating that cellphone use drastically increases the chances of an accident, causing drivers to drive as erratically as a drunk person.  The information, collected in 2002 but held back from the public, was obtained pursuant to a FOIA request by Center for Auto Safety and Public Citizen.

There are all sorts of interesting questions revolving around why NHTSA held back its information.  Was it solely because agency heads were unwilling to anger Congress, as has been reported, or did someone else (say, someone in the Bush White House or some interest group) pressure them to quash it?   I leave those juicy questions for another day.

What interested me most was Dowd's final conclusion at the end of the column. 

She begins, "Left, literally to our own devices, we spiral out of control."  Well, that makes sense.  She's saying that people cannot be trusted to make rational decisions about their welfare when cellphones and similar devices, like Blackberrys and computer laptops, mix with decisions about driving.  And driving affects not just our own welfare, but the welfare of others.  So the state should step in to prevent us from hurting ourselves and others by making the use of such devices illegal.  Sounds like the classic argument for criminalizing drunk driving.

But that's not exactly what Dowd says next.  Instead, she argues, "States should outlaw drivers from talking on phones [and using digital devices, except in emergency situations] ...; or at least mandate a $10,000 fine for getting in an accident while phoning or Twittering."(emphasis added)

Now I recognize Dowd is often sarcastic, but today's column was written a very sincere tone, and I get the sense that she really meant this paragraph to read as it does.  That is, she equates a law outlawing driving with such devices with a law that fines drivers $10,000 for getting in an accident while using one of these devices. 

Of course, the two are nowhere near alike.  To begin with, a $10,000 fine is not really a $10,000 penalty because the probability of getting in an accident is likely to be perceived as small.  If the chances of an accident are 1% , then you're talking about a $100 fine.  Would an addict pay $100 to indulge his or her addiction?  I think so.  There's a reason people refer to the ever-popular communication device as a "CrackBerry."

And remember, the costs of getting in an accident aren't just the fines you pay, but also the harm you cause others and yourself.  The physical and emotional costs of a car accident can be tremendous.  If the fear of missing a red light and slamming your car into a pole isn't enough to deter your phone usage while driving, why should we assume that an additional $10,000 per accident will alter someone's conduct?

Now, you might say that the chances of detection even under a scheme that criminalizes driving-and-phoning are no better than under the fine scenario.  Phones can be shoved under seats or thrown in purses.  How often will people really get caught.  And after all, wouldn't most of the penalties under a criminal system be fines too, since we hardly have the resources to start jailing these folks, right?

But there is a huge difference between the designation "criminal" and the designation "subject to at $10,000 fine."  The former causes tremendous collateral consequences, even for misdemeanor convictions, and brings with it a type of condemnation that a $10,000 fine doesn't come close to achieving.  Moreover, and perhaps most important, outlawing driving-while-phoning (and texting-laptopping-blackberrying etc) would allow the state to intervene before an accident occurred.  Just as many DUI's occur in the absence of any accidents, so too might many many DWPs (driving while phoning).

So why then, does Dowd create such a large out?  My guess is that she herself is conflicted (perhaps subconsciously) about the very devices she criticizes.  She knows firsthand that they cause harm, but she isn't quite ready to give them up.  You might call her a hyperbolic discounter -- the costs of giving up the cell phone in the near term overwhelm the costs to her in later periods.  As a result, she promises to never drive while phoning again, but when the opportunity presents itself, as she herself admits: "[O]f course, I did." 

All the more reason, then, to implement an outright ban.