Despite the Risks of Distracted Driving Indiana Lawmakers Lack the Resolve to Ban Handheld Cell Phones
A study by the Insurance Institute for Highway Safety (IIHS), in partnership with Virginia Tech shows texting while driving (TWD) is on the rise for the age group between 16 and 24 year olds. Statistically, teens are more likely to die in a car accident than by suicide, homicide or cancer. Locally, Sherry Deane of AAA Hoosier Motor Club has reported to The Journal Gazette that the fatality rate for drivers between 18 and 21 is on the rise while the rate has dropped for those younger than 18 ¾ largely crediting the decrease in Indiana’s graduated driving provisions.
The Courage to Ban Cell Phone Use for Indiana’s Minors and Young Adults
A law took effect two years ago that would prohibit anyone under the age of 21 from using a telecommunications device, including a hands-free or Bluetooth device, while operating a motor vehicle, i.e. a ban on cell phone use for young adults under the age of 21. The law stipulated, however, in the case of a bona fide emergency, a call to 911 would be allowed. This implies, although it does not specifically state (see Indiana Code 9-24-11-3.7), that cell phones may be allowed within the motor vehicle for the purpose of a 911 emergency. Licensed drivers under the age of 21 who were previously permitted to use a cell phone or hands-free Bluetooth device prior to July 1, 2015, were not grandfathered in.
Ironically, several lawmakers who voted for House Bill 1394, but did not read or comprehend the cell phone ban for drivers under 21 years old, were stunned when they heard about the contents of the bill on the news. Even the spokesman for the Indiana Bureau of Motor Vehicles, Josh Gillespie, found the passage of the telecommunications bill was a “shocker” to him.
Whether you agree or disagree with Indiana Code 9-24-11-3.7, it is the law of the land and it is unlikely to be changed as lawmakers are working their way, albeit ever so slowly, toward a bill that would reduce the number and severity of crashes caused by adults who are distracted by their cell phones while operating a motor vehicle.
The Future of Anti-Texting Laws in Indiana
State by state, HandsFreeInfo.com keeps tabs on proposed bills and the passage of laws concerning distracted driving issues and texting while driving. Since 2008, certain Indiana state senators and representatives have submitted bills that would keep pace with the technology by classifying the degree of offenses and discouraging the use of telecommunicative hand-held devices. The most recent effort in 2017, House Bill 1255: requires a person to use hands free or voice operated technology to place or receive a telephone call while operating a moving motor vehicle unless the device is used to call 911 to report a bona fide emergency. In the Fiscal and Management Analysis, it is expected that citations for distracted driving offenses would mainly come as the result of a motor vehicle accident. In other words, officers would be unlikely to issue citations for distracted driving offences prior to the occurrence of an accident. The proposed bill would not address cell phone use for applications other than making a telephone call.
Even though the U.S. Department of Transportation says cell phones are involved in 1.6 million crashes a year, causing half a million injuries and taking 6,000 lives, few lawmakers have submitted bills with a total ban on hand-held cell phone or telecommunication devices. Blue tooth devices are inexpensive and allow every smartphone owner to utilize the hands-free technology to place phone calls and send text messages without ever picking up the device. In 2014, one senator went on the record stating “I don’t think that realistically a handheld ban will ever happen, because of the independence of the Hoosier.”
What is Wrong with our Current “No Texting While Driving” Law?
The current law on texting while driving, IC 9-21-8-59(a), was signed by Governor Mitch Daniels on May 10, 2011. The wording of the law (as of this writing, July, 2017) restricts the offense to the reading, writing and sending of text messages, aka wireless messaging, or electronic mail also known as email, while a vehicle is in motion:
(a) A person may not use a telecommunications device to:
(1) type a text message or an electronic mail message;
(2) transmit a text message or an electronic mail message; or
(3) read a text message or an electronic mail message;
while operating a moving motor vehicle unless the device is used in conjunction with hands free or voice operated technology, or unless the device is used to call 911 to report a bona fide emergency.
The law further reads:
(b) A police officer may not, without the consent of the person:
(1) confiscate a telecommunications device for the purpose of determining compliance with this section;
(2) confiscate a telecommunications device and retain it as evidence pending trial for a violation of this section; or
(3) extract or otherwise download information from a telecommunications device for a violation of this section unless:
(A) the police officer has probable cause to believe that the telecommunications device has been used in the commission of a crime;
(B) the information is extracted or otherwise downloaded under a valid search warrant;or
(C) otherwise authorized by law.
It should come as no surprise that few tickets have been written by law enforcement for the offense of texting while driving because of the difficulty in determining what the driver is actually doing on his or her phone. As the law stands now, there are thousands of applications besides texting that people may legally pursue while operating a motor vehicle in the state of Indiana. Under the current law, setting GPS, retrieving and playing music, playing video games, watching movies and surfing the Internet are all within the boundaries of the law.
Although Indiana jumped on the nationwide bandwagon in 2011 by passing legislation banning texting and driving, the Indiana assembly has yet to exercise their will barring the use of hand-held devices. In 2016, it became clear to both Indiana lawmakers and law enforcement officers where the Court of Appeals stood on Indiana’s TWD law.
Of What Use is Indiana’s No Texting Law if it has No Teeth?
In the case of United States of America v Gregorio Paniagua-Garcia, a police officer stopped Mr. P-G (for brevity) after passing him on the interstate highway. The officer described Mr. P-G’s head as being close to the phone; the officer thought he was texting while driving. Mr. P-G told the officer he was searching for music. After questioning the driver of the vehicle for a few minutes, the officer asked if he could search the car and permission to do so was granted. Five pounds of heroin were discovered in the spare tire of the car’s trunk.
Mr. P-G was charged and tried in federal court. When the defendant’s motion to suppress the evidence (heroin) was denied, the defendant reserved his right to appeal by claiming the evidence was obtained during an illegal stop. On appeal, the United States government conceded a stop is legal “only if the officer has probable cause to believe that a traffic violation has occurred or reasonable suspicion that a crime was about to be or has been committed,” United States of America v Gregorio Paniagua-Garcia.
The government was unable to establish that the officer had probable cause to stop the defendant or a reasonable suspicion that he had violated the no-texting law. Why? Because the officer had not seen Mr. P-G texting; the officer testified that he thought he was texting while driving. And what he did see (Mr. P-G’s head close to the phone) was consistent with many other lawful uses of cell phones. On a side note, it was revealed at trial and conceded by the government that the defendant had not been texting when the officer saw him on the interstate highway; he was indeed searching for music.
This case is a complex illustration of the ineffectiveness of our current no-texting laws. Because our laws do not address the use of other smart phone apps, and because law enforcement is explicitly prohibited from downloading cell phone information or confiscating cell phones for purposes of evidence, their hands are bound and little more can be done but rely upon the truthfulness of the driver when asked, or hand out warning tickets to those drivers suspected of texting behind the wheel of a moving vehicle.
In the opinion of the 3-judge appeals panel, for the above-referenced case, it states:
“Indiana is right to be worried about the dangers created by persons who fiddle with their cellphones while driving, but probably wrong to outlaw such fiddling only with respect to texting…”
Go with an Experienced Personal Injury Attorney to Handle Your Claim for Injuries or Wrongful Death
A ticket for violating Indiana’s anti-texting law may cost the offender up to $500. On the other hand, in a civil claim for personal injuries or wrongful death due to the negligence of an individual, small business or corporate entity, a discovery request to obtain cell phone records may firmly establish liability on the part of the other driver when he or she failed to yield or otherwise caused the accident responsible for the injuries or death of you or your loved one.
Ward & Ward Law Firm has more in 85 years of experience in the successful litigation of claims for personal injury and wrongful death. We agressively pursue the compensation you or your loved one deserves.
If you or someone you know has been injured or killed in an accident involving a car, truck, bus, bicycle or motorcycle, call attorneys with experience in personal injury accident claims and an up-to-date working knowledge of the laws and legal opinions of the higher courts, all of which may affect your lawsuit, settlement or trial.
Read our reviews on Google then call me, Charlie Ward, today for a free consultation and evaluation of your potential claim at (317) 639-9501 or toll free at (888) 639-9501. I look forward to talking with you.
Charlie WardWard & Ward Law Firm 728 S Meridian St Indianapolis, IN 46225 317-639-9501 or toll free at 1 (888) 639-9501 Published 7-21-17