LawPulse

Effective January 1, Illinois drivers can't legally hold cellphones to their ears and talk. But lawyers and others who have the right technology can still communicate while on the road.

At the start of the new year, drivers will become subject to a blanket ban on the use of "electronic communication devices" while operating motor vehicles on any Illinois roadway.

The new law expands an existing ban in the Illinois Vehicle Code on texting and e-mailing while driving, and will prohibit all uses of electronic communication devices while driving, but for a few narrow exceptions for things like hands-free telephone calls, GPS navigation, CB and HAM radios, and emergency situations - a change that will have a big impact on attorneys who practice law while behind the wheel.

"Of course I would never practice law while driving, but I'm sure everyone else does," quipped Naperville-based commercial litigator and legal technologist Bryan M. Sims. "If you're talking to clients or reading e-mails or anything else with your phone while driving back from the courthouse, you'd better be aware of this law."

In 2012, the General Assembly passed a series of bills regarding the use of cell phones and other electronic devices while driving. One bill proposing a complete, statewide ban on all hand-held phone use while driving was defeated, but other bills were signed into law prohibiting cell phones in and around construction zones, accident scenes, school zones, and other specific areas.

Another successful bill banned drivers on all Illinois roadways from using electronic devices for purposes related to composing, sending, or receiving an "electronic message." (For more detail on the existing laws, see LawPulse from March and October 2012.)

The recent amendment to those laws, Public Act 98-0506, effective Jan. 1, 2014, removed the "electronic message" portion of the bill, leaving behind only the statutory language that prohibits the use of "electronic communication devices," regardless of the purpose.

The result of this public act may best be summarized by looking at what was removed from a fundamental sentence in the law: "A person may not operate a motor vehicle on a roadway while using an electronic communication device to compose, send, or read an electronic message."

The previously enacted restrictions on cell phone use in certain areas, including Chicago, remain unchanged. Like it or loathe it, the law will make compliance simpler to the extent it imposes a statewide ban, while a hodgepodge of local prohibitions now dot the Chicagoland map.

Inattentional blindness

Nashville-based sole practitioner Thomas C. Speedie Jr., who chairs the ISBA Traffic Law and Courts Section Council, said this law essentially recognizes that modern cell phones, or "smart phones," have many features beyond mere electronic-messaging programs that can be dangerous and distractive while driving.

When asked why cell phones and other electronic communication devices are banned behind the wheel, but eating cheeseburgers is not, Speedie said some scientific studies have shown that eating food is simply not as distracting as carrying on a thoughtful conversation with a person who's not in the car, or reading the fine print on a draft contract that was attached to an e-mail from a client.

"The studies I've seen dealing with cell phone use all come to the conclusion that it's actually a psychological situation that blinds you to the other things happening inside the car, and in the environment around you, in a way that your brain is not distracting you when you are simply eating a cheeseburger," Speedie said. "It's called 'inattentional blindness.'"

He said critics of cell phone bans often fail to recognize this psychological phenomenon, and therefore believe that any danger in using a phone while driving is caused simply by the need to hold the phone in one hand next to your ear, rather than keeping both hands on the wheel. Those critics believe the bans are not necessary because drivers can use extra care while holding a phone to their ear, just like they do while eating a burger.

"The analogy to what they're saying is that you're not allowed to drink a beer while driving because you have to raise a can to your lips," Speedie said. "Obviously, that's not the most dangerous part of drinking and driving."

Siri sez: Tech tools can help you call hands-free

With laws currently in place that ban hand-held phone use (including texts and e-mails) while driving, and with a blanket ban on most electronic communications devices effective this coming January, Sims said the hands-free and voice-activated features on modern electronics are becoming ever-more valuable to a busy lawyer who's constantly on the go.

And, as a member and past chairman of the ISBA Standing Committee on Legal Technology, Sims is full of good ideas for how to make the technology work in a way that's both safe and compliant with Illinois' driving laws.

"One of the things we suggest from the technological side of the practice of law is that anytime you have a phone you're using for any kind of work purpose, it should have a password on it," Sims said. "Obviously you don't want to be fumbling around entering your password as you're driving down the highway, but there are ways around that."

Sims said that software add-ons and changes to a phone's settings can allow those devices to perform many of their tasks either with the touch of a single button, or with voice-activated commands.

Such features are important in light of the provision in Public Act 98-0506 that creates an exception to the ban for phones and other devices that can be used "by pressing a single button to initiate or terminate a voice communication."

"The trick to being able to do this, the one-button thing, is to make sure your phone stays on," Sims said. "A lot of times when you're driving, the phone goes into its lock mode, the screen dims or turns off, and you have to press a button or swipe the screen to turn it back on."

Sims said a phone's settings can be adjusted so that when it's charging its batteries, the screen will not turn off and no password, button, or screen swipe is needed to use the features. Then, just plug the phone into a car charger when sitting behind the wheel and the phone can be used for many purposes in compliance with the one-button exception in the statute.

Sims also said many smart phones, like iPhones and the Samsung Galaxy S4, have voice-activated features that allow some of the important aspects of the device to be used solely with hands-free voice commands.

"The S-Voice program on the [Galaxy] S4 has a feature called 'Driving Mode,' and when you turn it on it basically gives you a very few things you can do on your phone, but you can do them all by voice," Sims said. "You can make a phone call, text message, operate the GPS, play a particular song, and you can check the weather."

Apple iPhones have a similar feature called "Siri," which Sims said allows the user to press a single button to activate a program that runs certain features by voice commands. Sims said the iPhone then talks to you in the voice of a helpful woman named Siri.

"I don't know if it really has a driving mode, but you can get to Siri by pushing and holding the round button, then she pops up and asks you what you want to do," Sims said. "You don't have to use your hands to do anything - you just talk to Siri and tell her what to do, and she'll do it."

Both the S-Voice and Siri programs can dial the phone numbers of people in a contacts list, type e-mails or text messages while the user dictates, and even play specific songs from a play list, all in response to voice commands that make those features lawful under the one-button, hands-free, and voice-activated exceptions in the Illinois statutes.

"There are even programs that will read emails to you, and text messages, and let you respond to them without ever having to touch your phone," Sims said. " 'DriveSafe.ly' is an example."