Public Defense

They may take my freedom, but they will never take my cell phone

By Gideon

The title only really works if you imagine it being uttered by Mel “before he went crazy – or maybe he always was” Gibson essaying the role of William Wallace in that stirring monologue near the end that is actually said to have never happened (There’s some trivia for you).

But it is indisputable that some of the lunacy that has infected the good actor’s mind has seeped into the brains of certain state legislators, for how else would one explain a new proposed bill that would make talking on a cell phone punishable by imprisonment?

Raised Bill 6366 would make the penalty for a second violation of the no-talking-on-cell-phones-while-driving law up to three months in jail:

(h) Any person who violates subsection (b), (c) or (d) of this section shall, for a first violation, be fined one hundred dollars, and, for a second or subsequent violation, be fined not more than five hundred dollars or imprisoned not more than three months, or both.

It would also give the police the immediate authority to suspend a driver’s license for a period of 24 hours, without a hearing, or due process, which up until now were within the exclusive kangaroo jurisdiction of courts and the Department of Motor Vehicles.

I’ll get back to the “3 months in jail” provision in a bit, because there are other problems with the bill as drafted that also merit attention. For example, the bill makes it illegal to talk on the phone or send text messages, but does not make it illegal to hold “a hand-held mobile telephone to activate, deactivate or initiate a function of such telephone”.

There is an exception for a “hands-free” device which:

means a hand-held mobile telephone that has an internal feature or function, or that is equipped with an attachment or addition, whether or not permanently part of such hand-held mobile telephone, by which a user engages in a call without the use of either hand, whether or not the use of either hand is necessary to activate, deactivate or initiate a function of such telephone.

So, it would seem, I can answer a call, put the phone on speaker and talk away to my heart’s content. Or can I? It is also illegal to have “engage in a call” in one’s “immediate proximity”:

(7) “Immediate proximity” means the distance that permits the operator of a hand-held mobile telephone to hear telecommunications transmitted over such hand-held mobile telephone, but does not require physical contact with such operator’s ear.

Whaaa? So can I use the speaker function, or can’t I? The bill also makes it a rebuttable presumption that anyone who holds a phone to, or in the “immediate proximity” of his ear is engaged in a call. The presumption can be rebutted by one proving that there was indeed no call taking place.

And of course, the bill also makes it clear that getting pulled over for this violation does not give police the authority to seize or forfeit the phone.

Nifty little trick there. It places the burden of proof – of innocence – on the accused and then forces that accused to give up his fourth amendment right to be free from illegal search and seizure in order to prove that innocence.

The only way that someone can prove that they were not engaged in a call is to take out the phone and show the officer that they were not, indeed, making a call. But courts have held recently that there is some grounds for a right to privacy in one’s telephone, thus triggering the Fourth.

[Although, this particular "problem" is taken care of by Raised Bill 961, another bill on talking-while-driving, which directs the police to seize the cell phone for a period of 48 hours. I suggest that each one of you create a password on your cellphones and calmly remind the officer that he is violating your fourth amendment rights and that he obtain a warrant prior to seizing the cell phone.]

Of course, the biggest problem with this bill is that it creates criminal liability for acts that are so poorly defined and that really should not be the subject of criminalization.

Making one of the potential penalties 3 months’ imprisonment brings with it the attendant rights of anyone who is exposed to a deprivation of liberty. Which means due process, the right to counsel, etc. And that means greater resources and more time wasted on something that really even the police themselves can’t be bothered to police. In other words, I smell pretext.

H/T: Capitol Watch

Full post as published by A Public Defender on March 15, 2011 (boomark / email).