Texting and Driving is Unsafe and Illegal... But You Probably Won't Get A Ticket Anytime Soon..

Below is an article I originally wrote and published in the Indiana Lawyer in 2011.  Unfortunately, the predictions made in the article turned out to be true and remain relevant today.  As of June 2012, one year after going into effect, only five (5) tickets had been written in Indianapolis for texting while driving.  There were only 125 tickets issued state-wide during that time.  That's less than 2 per county in a year.  It's unknown how many of those were later dismissed for lack of evidence. 

As predicted in 2011, law enforcement cites difficulties determining whether the driver is using the device for a prohibited activity (text or email), or a permitted activity (such as anything else, including GPS, internet, or even Angry Birds).

Indiana’s Texting Ban: Flawed and Unenforceable (June 2011)

Indiana’s ban on texting while driving went into effect on July 1, 2011.  The ban provides that a person of any age commits a class C infraction if they use a telecommunications device, such as a cell phone, iPad or laptop to type, transmit or read text messages or email while driving.  A single violation is punishable by up to a $500 fine.  The ban was enacted by House Bill 1129 passed this spring and expands on Indiana’s existing texting ban, previously applicable only to drivers 18 and under.  

The texting ban may be a good idea from a public policy standpoint and few disagree that distracted driving can equate to dangerous driving.  But the texting ban is flawed and essentially unenforceable as passed.  

First, the scope of the ban is limited only to texting and email.  It does not cover a broad range of other activities these devices are often used for.  For example, the ban does not prohibit dialing a phone number, surfing the internet or using the thousands of apps now available on most smartphones and similar devices.  These countless other uses serve as plausible defenses for any driver stopped for a suspected violation.  Second, the ban expressly prohibits police from confiscating the device to confirm a violation or for use as evidence.  Even if an officer witnessed a driver typing on their device, proving that the driver was composing a text or email is nearly impossible absent a confession.  

The texting ban was originally part of more comprehensive distracted driver legislation which included a ban on placing or receiving phone calls.  However, the Senate Conference Committee stripped the bill of the provisions banning the making or receiving phone calls leaving only the texting ban in place.  This was an apparent compromise as many in the Indiana General Assembly were concerned that there was not enough support for a more comprehensive ban on cell phone use while driving.   The end result was weaker legislation against distracted driving that gives potential offenders the plausible defense that they were typing on their phone to dial a phone number rather than to transmit a text message or email.  

Indiana is the 32^nd state to ban texting while driving for all ages.  Another eight states have texting bans for novice drivers, typically those under 18.  With some kind of texting ban in 80% of states, there is strong nationwide support for this legislation.  Conversely, only eight states have broader bans on handheld cell phone use for drivers of all ages (with exceptions for use with hands free technology).  The slow acceptance of more comprehensive cell phone bans by other states may explain why our General Assembly was reluctant to pass a broader ban in the last session.

Indiana’s texting ban includes an exception that allows drivers to use their device in “conjunction with hands free or voice operated technology.”  This exception is often found in distracted driver legislation from other states, but it only makes sense as an exception to a ban on making or receiving phone calls while driving.  Many devices now include technology that easily allows a user to make or receive a phone call with only their voice.  However, this technology is not as simple to use for composing text messages or emails.  

Voice transcription technology, such as the Dragon Dictation app for the iPhone and Android devices, allows a user to compose a text or email with their voice.  (Update: This obviously now includes Siri as well.)  But any dictation app also requires the user to review their message for accuracy before sending it.  Correcting transcription errors requires the driver to use their hands.  Therefore, the use of such “hands free or voice operated technology” in this context still requires the driver to take their eyes off the road to ensure their message was composed correctly, thus defeating the underlying purpose of the ban and its exception.  

The ban on texting while driving remains a step in the right direction despite its flaws and enforcement problems.   It stands as a statement that our General Assembly recognizes the dangers of distracted driving and believes Indiana should have a public policy against it.  As the popularity of these devices grows, so does the potential for driver distraction and harm.  Hopefully, this ban is just the first step towards more comprehensive and enforceable legislation to protect our citizens from the ever increasing dangers posed by distracted driving.

Chris Pearcy is the Senior Associate at Hume Smith Geddes Green & Simmons LLP in Indianapolis, IN.  His practice focuses on civil litigation, including first and third party insurance litigation, complex insurance coverage, dram shop defense, premises liability, auto liability, construction accidents, contract disputes and business litigation.  He lives in Fishers, IN with his wife, Jennifer, and their two little boys, Noah and Eli.