Wednesday, October 14, 2009

Proposed Austin traffic ordinances hype fear, generate revenue, without improving safety

It looks like the Austin City Council on Oct. 22 is prepared to vote for two ordinances that IMO are clearly more about moneymaking and publicity than safety: A ban on texting while driving and a requirement that cars come no closer than 3 feet to pedestrians, cyclists or other "vulnerable road users."

Texting while driving is a dumb thing to do, but so is the ban on texting as it's been suggested. For starters, the ban is unenforceable because it's impossible to tell whether someone looking at their phone in their lap is texting or dialing a phone number. Assuming people will shut their phone off when stopped and that police don't have resources to arrest them, seize their phone, and send it to a technical forensics unit for a Class C misdemeanor, I don't see how they'll ever convict anyone who contests the charge.

The City Council knows the ordinance is unenforceable but plans to pass it anyway purely for public relations purposes - to "bring attention," we're told. According to the Austin Statesman, "Council Member Sheryl Cole said Tuesday that the ban will be tough to enforce but is worth enacting to bring attention to the dangers of texting behind the wheel." However, it won't bring much attention because Councilmember "Martinez said the city is not planning an advertising campaign about the new ordinance but will enlist the media's help in making the public aware of it."

So they're not going to spend any money informing people about the dangers of texting while driving, but somehow giving out tickets is supposed to make the public "aware" of the problem. That's pretty cynical, frankly. Sending messages is the purpose of TV ads and billboards, not criminal law. If texting is so great a public danger, why isn't it worth the money to inform drivers about the ordinance, just like the state does with seat belts and DWI? And if it's not worth informing the public, is it really worth it from a public safety perspective just to give out tickets for an offense people don't even know about? Only if you're most concerned about revenue, not safety.

Meanwhile, Austin police all have laptops in their cars but that's not considered a problem because "The department has no policy against typing messages while driving, but officers are trained to be aware of the hazards of doing so," according to the head of APD's highway enforcement unit. But if it's unsafe for civilian drivers to type while driving, it's flat out hypocritical not to change police policy to match that requirement.

This is just a vehicle for politicians to engage in fearmongering, then claim they're doing something about the crisis of the day when really it's all for show and won't actually solve the problem. But of course, it generates revenue. Cities all over Texas are witnessing declining sales tax revenue and they've got to make it up somewhere.

The proposed ordinance requiring 3 feet between cars and "vulnerable road users" is even more silly and driven IMO purely by a desire for revenue. Since the idea was first proposed, I've tried to pay attention when my car comes close to cyclists or pedestrians on the side of the road, and there are many times in day to day traffic downtown when those road users come closer than 3 feet to cars but are perfectly safe and not endangering anyone. Usually this happens at the instigation of the 'vulnerable road user." Indeed, there are places in town where it's virtually impossible not to come that close because city traffic engineers haven't created enough bike lanes or provided 3 feet worth of room for bikes operating adjacent to car traffic.

Besides, state law already requires maintaining a "safe driving distance" between cars, pedestrians and cyclists and that more flexible standard is much better public policy. The 3 foot proposal is arbitrary and pointless. It will create more opportunities to give tickets but won't improve road safety one iota over the laws already on the books.

MORE: From Radley Balko and Scott Greenfield.

35 comments:

shg said...

I still have difficulty understanding the Texas mentality that allows people to simultaneously believe that it's fine to shoot and kill people for property crimes, even those committed against others, but fight to the death for their personal right to use cellphones and text while driving.

I've heard the arguments, the bravado and machismo surrounding their inherent right to kill people they don't like (he needed killin'), but when it comes to simply not doing something that is relatively needless and certainly potentially harmful to others, they are outraged.

A very strange and disconnected sense of priorities.

Gritsforbreakfast said...

SHG, even if texting is "relatively needless," that doesn't change the fact that the ban is unenforceable.

For me, it's not a question of "priorities" at all but simply living in the real world and not some fantasyland where pols hype problems then pretend to solve them without really doiog anything meaningful. You tell me: How does a cop tell if a person looking down at their phone is dialing or texting? If you don't have an answer to that question, IMO they shouldn't pass the law.

Honestly, I'd think that you of all people would see the problem with banning every human activity that is "potentially harmful to others."

Anonymous said...

I'm a bike rider. Not a cyclist. And not someone who rides as a primary form of transportation. I ride cruiser bikes and mountain bikes. I'm not unaware of the poor cycling environment on the streets of Austin.

However, I have little sympathy for cyclists who are just plain dumb. I thought we bikers were supposed to be smarter and more enlightened than those who love their cars.

Example: I drive Lamar from 25th St. to 15th St. every morning and almost without fail there is some not so bright person on a bike on the road in 8 o'clock traffic. There is no bike lane there. Yes, the rider has a right to the road. Sure, if you want to die. That's just stupid.

Today, some ingenious one was riding southbound between the two lanes of traffic -- Mr. DeathWish I called him. Wow.

Meanwhile, the smarter human on a bike was riding on the sidewalk along Pease Park. There is a sidewalk along Lamar from about 32nd St. frankly all the way to the river. No, you can't go as fast on the sidewalk and there are pedestrians to contend with but would a smart cyclist rather collide with a 175 lb. person or a 4,000 lb. car? Maybe it's against the law to ride a bike on a sidewalk ... but too bad. I'd rather live than die.

As was said, there are already laws on the books about maintaining a safe distance. The 3 foot standard is unenforceable. How do you prove it? I know, only in a collision so you can tack on an extra fine.

Regarding cell phones, there are already laws on the books for being distracted while driving. You may as well begin giving tickets for eating a hamburger while driving, putting on makeup, changing your CD, or tending to your children. If it's a distraction, then you already can be ticketed for it.

Regarding raising public awareness, I'm not sure "eek, it's against the law, but you'll never be ticketed for it unless you have an accident" will do much to discourage cell phone use. People will continue to text and eat cheeseburgers and put on their makeup and the city can add $XXX as a fine after an accident. That's nice, but the harm will have already been done.

Unless the city, or someone, is willing to put some advertisement or public service announcement into encouraging people to put down the phone, people will continue to use their cell phone. It doesn't matter what the law is, people will always do whatever they can get away with.

I don't remember my google password is and I don't know what OpenID or Name/URL means though I do have a blog as Raphael Hythloday so I guess I'll be anonymous.

shg said...

I do see problems with overcriminalization, Scott. All the time. But I similarly see problems with people just getting too darn stupid to behave in a sensible way.

If the texting fool only put his own life at stake, then I could understand someone saying, "whatever, he asked for it." But it's the lives of others on the road that troubles me, and it is critically important that we recognize that this is just not an activity worthy dying, or killing someone, for.

As for enforcement issues, I had posted about Radley's argument this morning. They are real, but not insurmountable.

Gritsforbreakfast said...

SHG, I responded to your post on this topic on your blog.

Anonymous said...

Austin is just getting prepared for the federal legislation that most likely will pass. :)

The legislation, introduced in July by Sen. Charles Schumer, D-N.Y., and Rep. Carolyn McCarthy, D-N.Y., would require states to bar drivers from texting while driving or risk losing a a quarter of their annual federal highway funding.

Ryan Mustard said...

Enforcing the texting ban would just require getting the records from the phone company that show when you sent a text. If it is cheap enough to do this, then I suspect it would just become a routine part of a ticket when you get pulled over and have a cell phone on in plain view. I don't support this kind of policing, I'm just saying it's possible.

Anonymous said...

"But of course, it generates revenue. Cities all over Texas are witnessing declining sales tax revenue and they've got to make it up somewhere."

Make it up for what? I thought cities could only use collected traffic fines for street improvements. Right or wrong?

What percentage of fine collections makes up the city of Austin's overall budget income?

How much money goes to the state comptroller vs. to city coffers?

Anonymous said...

"Enforcing the texting ban would just require getting the records from the phone company that show when you sent a text."

Most likely, subpoenas for phone records will take place only in the event of an accident and cell phones are present or suspected to have been a contributing factor.

Don't look for APD or any other agency to begin mass writing citations just because you are going down the road dialing your phone. Give some of these officers a little more credit here. Citations related to accidents are another story.

Varm said...

Can a city government even legally create a Class C misdemeanor? I thought only the State of Texas could define criminal offenses.

I see chapter 54 of the Texas Local Government Code it allows for the creation of ordinances with a fine of up to $500 and no jail time. (up to $2k on fire/zoning/sanitation ordinances)

So the punishment range for ordinance violations certainly overlaps the punishment range for a Class C misdemeanor. It quacks like a duck but is it a duck?

Gritsforbreakfast said...

Ryan, they're not going to get subpoenas to wade through phone records on Class C misdemeanors. That's just too labor intensive for prosecutors and it's not going to happen on any significant scale.

10:26, your information is not quite correct. I don't know the local stats or the breakdown of who gets what, but e.g., Dallas County gets more than half its county budget from fines and fees and does warrant roundups whenever they need extra cash in the base budget.

To 10:31, if it's only done via subpoena after accidents, wouldn't you agree with the writer above that "'eek, it's against the law, but you'll never be ticketed for it unless you have an accident' [won't] do much to discourage cell phone use"? If that's the case, then there's no public safety benefit at all, it's just an opportunity for more revenue generation after an accident has already occurred.

Varm, I consider municipal ordinance violations Class Cs just because they quack like a duck. I don't know the answer to the technical distinction your're asking about, though.

Pirate Rothbard said...

"I still have difficulty understanding the Texas mentality that allows people to simultaneously believe that it's fine to shoot and kill people for property crimes, even those committed against others, but fight to the death for their personal right to use cellphones and text while driving"

If someone breaks into a house and gets shot it will be called self defense and I'm fine with that. There are a wide range of philisophical justifications for self defense, as I do not understand your objection to the principal I can not comment further.

The problem with the rules of the road, rules against DWI and texting is that roads are run by the government and the government is dumb. The government says the roads should be safe, but the rules are very arbitrary. You can't drive drunk but you can be hyped up on prescriptions. There are few regulations on the elderly driving but tighter regulations on teenagers. Texting is now banned, flipping through the radio is not. So there is always going to be resentment about the regulations.

What I can say is that if we allow the smallest possible governments to make these rules, governments will compete to make their rules more efficient. So if the texting ban leads to arbirtrary ticketing and harrassment by the police, it will mean less people move to Austin. If it improvess safety, people will mean more people move to Austin.

shg said...

Think about the Horn case, where he shot and killed two men who had robbed a neighbor's house and were in the process of fleeing. The grand jury refused to indict him for the murders.

For some reason, many from Texas seem to find this a perfectly acceptable thing to do. More than acceptable; the right thing to do.

Anonymous said...

"Dallas County gets more than half its county budget from fines and fees and does warrant roundups whenever they need extra cash in the base budget."

Scott......

You know there is a difference between Dallas County and the city of Austin. Dallas County is also collecting fines and costs related to Class A and B misdemeanors as well as Class C's where the city of Austin can only collect for Class C's. I suspect there is a great disparity between the two.

I don’t know where you got your information but the information contained at this link contradicts what you say about Dallas County’s fine revenue being half of its budget in revenue.

http://www.dallascounty.org/department/budget/documents/FY2010ApprovedBudgetDetail_000.pdf

VARM...........

A local authority may regulate traffic in a manner that does not conflict with the uniformity and interpretation of Texas traffic laws. Read beginning with section
542.201. Texas Transportation Code.

Pirate Rothbard said...

shg,

Horn claimed it was self defense. (They charged him and then they turned away and got shot in the back.)

I don't know if his actions were right, but boy,talk about a waste of taxpayer dollars to put him in prison.

After the shooting, some of his neighbors put out signs that said "tresspass and die". If a neighbor gives fair warning like that I definitely am ok with a burlgar getting shot.

Gritsforbreakfast said...

12:41 - Here's my source on the Dallas info, quoted from the Dallas News. And yes, I know county and city government are different - I only mentioned it to rebut the claim @ 10:26 that traffic fine revenue could only be used for road repair.

Anonymous said...

"You can't drive drunk but you can be hyped up on prescriptions."

Pirate............

Where are you getting your information? The fact the defendant has beeen entitled to use the alcohol, controlled substance, drug, dangerous drug, or other substance is not a defense. TPC 49.10

Pirate Rothbard said...

10/14/2009 01:07:00 PM, never said it was a "defense", if you get into an accident.

However I never have heard of anyone being arrested for "driving under the influence of anticonvulsants". If there is a statute against driving while taking anti-seizure medication, please tell me.

Anonymous said...

"I only mentioned it to rebut the claim @ 10:26 that traffic fine revenue could only be used for road repair."

Oh Scott, please start doing more research. I would be glad to help you free of charge. :)

TX Transportation Code Sec. 542.402

DISPOSITION OF FINES. (a) A municipality or county shall use a fine collected for a violation of a highway law in this title to:

(1) construct and maintain roads, bridges, and culverts in the municipality or county;

(2) enforce laws regulating the use of highways by motor vehicles; and

(3) defray the expense of county traffic officers.

(b) In each fiscal year, a municipality having a population of less than 5,000 may retain, from fines collected for violations of this title and from special expenses collected under Article 45.051, Code of Criminal Procedure, in cases in which a violation of this title is alleged, an amount equal to 30 percent of the municipality's revenue for the preceding fiscal year from all sources, other than federal funds and bond proceeds, as shown by the audit performed under Section 103.001, Local Government Code. After a municipality has retained that amount, the municipality shall send to the comptroller any portion of a fine or a special expense collected that exceeds $1.

(c) The comptroller shall enforce Subsection (b).

(d) In a fiscal year in which a municipality retains from fines and special expenses collected for violations of this title an amount equal to at least 20 percent of the municipality's revenue for the preceding fiscal year from all sources other than federal funds and bond proceeds, not later than the 120th day after the last day of the municipality's fiscal year, the municipality shall send to the comptroller:

(1) a copy of the municipality's financial statement for that fiscal year filed under Chapter 103, Local Government Code; and

(2) a report that shows the total amount collected for that fiscal year from fines and special expenses under Subsection (b).

(e) If an audit is conducted by the comptroller under Subsection (c) and it is determined that the municipality is retaining more than 20 percent of the amounts under Subsection (b) and has not complied with Subsection (d), the municipality shall pay the costs incurred by the comptroller in conducting the audit.



Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 165, Sec. 30.105(a), eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 1336, Sec. 1, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1545, Sec. 72, eff. Sept. 1, 1999.

Gritsforbreakfast said...

1:36, I appreciate all the help I can get. I have never claimed to have memorized the tens of thousands of pages of Texas law.

However, even from what you quoted, the money can be used for more than just road repair, plus money is fungible so if they pay for those big ticket items with fines it offsets taxation, which was exactly my point. Public safety and public works are the biggest items in most municipal budgets.

Anonymous said...

Pirate....

There is no prerequisite to be involved in an accident to be charged with DUID.

The statute requires proof the defendant does not have the normal use of mental or physical faculties by reason of the introduction of alcohol, controlled substance, a drug, a dangerous drug, a combination of two or more of these substances, or any other substance into the body.

Bottom line, you cannot drive in Texas hyped up on prescriptions, accident or no accident.

M1EK said...

The "3 foot" ordinance exists because many people, apparently including yourself, aren't aware that if insufficient space exists to safely pass a cyclist (or pedestrian) in the lane, you should actually change lanes to do so. This is true whether or not there is a bike lane; no matter how wide or narrow the lane; no matter whether there's a shoulder or a sidewalk. If it's not safe to pass, change lanes.

Pirate Rothbard said...

10/14/2009 01:46:00 PM,

"Bottom line, you cannot drive in Texas hyped up on prescriptions, accident or no accident."

Depends what your definition of hyped up is. What is legal the blood-Depakote level? From the way you've just quoted the statute, there may be no standard. You can only be charged if the officer notices your impairment. Its clearly different than the standard for alcohol and very different in how its enforced.

Even a small dose of pain kilers or anti-seizure or anti-anxiety drugs can affect ones ability to drive.

Anonymous said...

"To 10:31, if it's only done via subpoena after accidents, wouldn't you agree with the writer above that "'eek, it's against the law, but you'll never be ticketed for it unless you have an accident' [won't] do much to discourage cell phone use"?"

Yes Scott, I agree with you 100% on this. A reasonable and prudent officer is not going to pull someone over just for touching the cell phones key pad, that is unless the officer observes the person can't maintain the lane their driving in or otherwise is driving recklessly.

Gritsforbreakfast said...

M1EK, perhaps you missed the portion of my post that noted a) that most violations of the 3 foot space I've observed came at the instigation of the "vulnerable road user," and b) traffic engineering flaws in many areas of town preclude the 3 foot gap.

It's a silly, redundant, and unnecessary proposal, and your comment tells me that some proponents aren't thinking clearly (if at all) about how it will actually play out on Austin roadways.

Anonymous said...

"Its clearly different than the standard for alcohol and very different in how its enforced."

"What is legal the blood-Depakote level?"

Pirate.........

The way I interpret the statute, no blood level is required; the statute requires proof the defendant does not have the normal use of mental or physical faculties. Loss of normal use of mental or physical faculties is the key. That's why warning lables are put on prescription medicine bottles.

My information on depakote is that it may cause drowsiness and impair alertness, especially at the start of therapy. There is a warning to patients to use caution when driving or performing tasks that require alertness.

The investigating officers video/audio dash cam video recording the manner in which the defendant is operating the vehicle and field tests given by the officer helps to give the officers personal observations more credibility as it relates to proving the defendant's physical and mental faculties.

I know of an accident in which the driver at fault had no odor of alcohol, checked .000% intoxilyzer on blood alcohol but obviously was not right. A search of the car revealed to empty bottles of Nyquil.

Driver was charged and subsequently convicted.

shg said...

"After the shooting, some of his neighbors put out signs that said "tresspass and die". If a neighbor gives fair warning like that I definitely am ok with a burlgar getting shot."

I'm putting a sign out side tomorrow. "Annoy me and die." I'm hoping that I get a jury of people from Texas.

Pirate Rothbard said...

shg,

The faultiness in your logic is that annoyance is not necessarily a violation of property rights or liberty. For instance, Madonna annoys me every time she appears on television. However, her appearing on television does not violate my rights.

On the other hand, if a burglar trespasses onto someone's yard, they have violated the person's property rights. If the homeowner has made it clear that he intends to shoot any trespassers, you could even say that a contract has been created, and the burglar has agreed that being shot is a reasonable punishment for his actions.

doran said...

Priate, I will appreciate it if you will draw our collective attention to something, anything, a provision of the Texas Penal Code would be good, or maybe some other Texas law, which supports your theory that someone who is doing no more than trespassing on my yard is fair game for my 20ga. Your suggestion brings up all sorts of questions.

Isn't there some kind of mental state required of the shootee before it becomes legal to off him (or her). What if they are out in my pasture: Can I shoot'em there?

If this ability to shoot a trespasser some form of the Misdemeanor Murder Rule?

Am I required to actually succeed in killin' the rascal in order to be entitled to the benefit of the law? I mean, if I miss a vital spot and just cripple the SOB, am I going to get prosecuted for seriously injuring the guy (or gal)?

Look at it this way and enjoy what a peculiar situation can be presented: If I can really, legally shoot a trespasser who is doing nothing more than walking across my place, then I probably cannot be prosecuted for attempted murder if I just wound him. But I might be successfully prosecuted for inflicting serious injury, on the theory that since the SOB needed shooting, and since I screwed up at that attempt, I should be punished by the criminal justice system for being such a f#!k-up. Right?

Believe me, these are real life situations I'm talking about here.

Will be glad to have your response.

Pirate Rothbard said...

"Priate, I will appreciate it if you will draw our collective attention to something, anything, a provision of the Texas Penal Code"

Doran, do I really have to spell it out? It should be obvious that I'm talking about natural rights, not the "law" imposed by the state.

"If this ability to shoot a trespasser some form of the Misdemeanor Murder Rule?"

No. I'd say, that if I warn someone that they will be shot if they trespass and they do, I'm entitled to it because they have been warned. At this point I call it the "Doctrine of Foretold Punishment" until I can find a philosopher who’s advocated something similar and then I’ll gladly use his term.

“Look at it this way and enjoy what a peculiar situation can be presented: If I can really, legally shoot a trespasser who is doing nothing more than walking across my place, then I probably cannot be prosecuted for attempted murder if I just wound him. But I might be successfully prosecuted for inflicting serious injury, on the theory that since the SOB needed shooting, and since I screwed up at that attempt, I should be punished by the criminal justice system for being such a f#!k-up. Right?”

I’d say, you’ve left out the key point that the offender has to be warned in “The Doctrine of Foretold Punishment”. Also, you seem to be interpreting a sign that says “trespass and die” very literally, as in “You have the right to assisted suicide if you enter my yard.” I wouldn’t mind changing the sign to “Violate my property rights and I have the rights to violate all of yours.” But such a sign would not be on a criminal’s reading level. =)

doran said...

Pirate, from what planet do you broadcast? You obviously have an ISP which is better than the Hughs Net I have, so please let me know.....

Anonymous said...

Council is likely to try to tack a ban on talking on cell phones to the text-ban ordinance next week.

M1EK said...

"b) traffic engineering flaws in many areas of town preclude the 3 foot gap."

Scott, this shows you don't get it. Cyclists have a right to be on the roadway, and the 3 foot rule makes you go into the next lane (oncoming, if necessary) to pass them in constrained environments, which is exactly what should happen, but rarely does.

There is no 'right' to squeeze by a vulnerable user because there's no bike lane or the lane is narrow. Unfortunately, the legal system has proven unsuitable or unwilling to enforce this common-sense rule with the existing regulations about careless driving, so here we are.

vanderlei said...

Would the 3 foot window also apply to lane splitting or riding the shoulder? If that interpratation was followed i expect it would be a pretty large hinderance to riding around town on a bike.

Then again i suppose these things along with riding on the sidewalk already have rules which arent really enforced to heavily.

Deb said...

Homerun, yet again, Grits!

And for those framing opponents arguments as "fighting to the death to protect the right to text/drive" folks: please, stop. Being against bad policy does not make you a proponent of the item the policy is attempting to outlaw.