Effective January 1, drivers aren't allowed to "compose, send, or read an electronic message." Is PA 96-0130 overregulation or overdue?

The local, national, and international media have spotlighted distracted drivers this year in the wake of serious accidents. Legislatures in Illinois and elsewhere have sought to address multitasking drivers by doing what legislatures do: passing new laws.

In Illinois, HB 71, prohibiting texting while driving, has been signed into law as PA 96-0130, effective January 1, 2010. The new statute, codified at 625 ILCS 5/12-610.2, prohibits the operation of a motor vehicle while using an electronic communication device to compose, send, or read an electronic message.

Is an "anti-nail polish statute" next?

"Electronic communication device" is defined as "an electronic device, including but not limited to a wireless telephone, personal digital assistant, or a portable or mobile computer while being used for the purpose of composing, reading, or sending an electronic message." But the definition excludes navigation or global positioning systems or devices that are physically or electronically integrated into the motor vehicle.

The statute contains several exceptions. Law enforcement officers who are performing their official duties are exempted, as are commercial motor vehicle drivers who are reading messages displayed on screens of limited size that are permanently installed in their vehicles. Drivers who are using electronic communication devices in handsfree modes, who are reporting emergencies, who are pulled over on roadway shoulders, or who are stopped in traffic and have put their vehicles in neutral or park are also exempt.

Skokie lawyer Edward M. Maloney, a seasoned DUI defense practitioner, was a member of the Secretary of State's Distracted Driving Task Force, which drafted the legislation. Noting that at least one recent study has suggested that drivers who text are even worse at stopping in time to avert an accident than drivers whose blood alcohol content is at or close to Illinois's legal limit of .08, Maloney says he would have supported prohibiting even more multitasking while driving than the new statute does. However, he believes PA 96-0130 is a substantial step in the right direction toward curbing distracted driving habits.

Maloney and Chicago lawyer Ava George Stewart, who also focuses her practice on DUI law, believe that the legislation foretells the eventual statewide prohibition of driving while carrying on cell phone conversations as well. But the two disagree on the legislation's probable effect.

"We have enough laws" to address the problem of distracted drivers, believes George Stewart, referencing the state statute against reckless driving as well as local ordinances such as sec. 9-40-140 of the Municipal Code of the City of Chicago, which prohibits negligent driving. "Where are we going with this? Will there be an anti-nail polish statute? An anti-putting-on-mascara statute? An anti-reading-the-newspaper or drinking-hot-coffee statute? you can't legislate for good behavior and common sense."

Citing a recent New York Times article discussing commercial truckers' use of computers while driving, she also thinks the statute's exceptions for those drivers are "insane. How many tons do their vehicles weigh?"

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George Stewart fears the problem of distracted drivers runs far deeper than any statute has the power to solve. "We are a nation that values multi-tasking. We eat on the run. We drink on the run. We have teleconferences from our cars. We think sleep is for losers."

But Maloney says prosecutors have not always agreed that statutes already in place, including the reckless driving statute, are sufficient to address this problem. Disagreeing with George Stewart, he believes the new statute will have an effect on drivers' behavior. "The majority of people didn't use to wear seat belts, either. Now that it's mandatory, most do."

And, noting that drivers now generally recognize the importance of wearing a seat belt to preventing injury or death in the event of an accident, he thinks the new texting statute, too, has an important educational component. Unlike George Stewart, he views the new law's exception for commercial drivers as reasonable, saying that for a commercial driver to check a screen in his cab for messages is no more than a momentary distraction, similar to any driver's checking a dashboard meter for speed or gas level, for example.

Maloney shares George Stewart's concerns regarding enforcement of the new law. "It may be hard to prove that texting was occurring at the time of the accident." Though he suggests that evidence from a third party source, such as a passenger or bystander, or the telephone itself might be persuasive, she questions whether even resource-consuming subpoenas of telephone records will be sufficient to prove that a driver was texting at the precise time of an accident.

George Stewart expands on her thoughts on texting and other traffic law issues at http://chicagoduilaw.blogspot.com/. Other recent media stories about distracted drivers include http://www.nytimes.com/2009/11/02/technology/02texting.html (enhanced penalties for texting in Great Britain) and http://www.chicagobreakingnews.com/2009/10/not-guilty-plea-in-alleged-nail-polish-fatal-crash.html (driver who was allegedly applying nail polish at time of fatal crash in Lake County enters plea of not guilty to reckless driving charge). The New York Times story on commercial drivers and their cab computers is at http://www.nytimes.com/2009/09/28/technology/28truckers.html.