Thursday, August 27, 2009

Proposed Austin texting ban ignores commuters, reality, to get more revenue

Austin's City Council today will consider whether to ban texting while driving as well as a new law requiring a 3 foot separation between drivers and pedestrians, cyclists or other road users, the Austin Statesman reported this week.

Councilmember Mike Martinez began floating the idea of a local texting ban last year but said he wanted to see how bills fared at the state Legislature first. More than a dozen bills addressing cell phone use while driving failed during this year's legislative session, he said. One that survived — prohibiting cell phone use in school zones — will take effect Sept. 1, but some cities are questioning whether they must enforce it. Austin plans to enforce it and install about 750 signs related to the school-zone ban — at an estimated cost of $80,000 — within a year, starting this fall.

Martinez said he's interested in enacting a ban on cell phone use while driving — an idea he suggested last year — but said the issue needs more debate. There is clearer data to show that texting while driving poses a danger, he said.

A report released last month by the Virginia Tech Transportation Institute and cited by Martinez found that when truck drivers texted, their collision risk was 23 times greater than when they weren't texting. The study, financed with $300,000 from the Federal Motor Carrier Safety Administration, involved outfitting the cabs of long-haul trucks with video cameras over 18 months.

The Austin Police Department does not have statistics on wrecks that might have been caused by text messaging, said Donald Baker, commander of the highway enforcement division. He said the ban could be tough to enforce. Officers would either have to catch a driver texting or rely on driver and witness accounts if a wreck occurred, he said.

"If someone was texting and they had the phone down low and nobody saw them, how do you know they are in violation? Human nature is that the driver isn't going to admit it to the officer," Baker said....

Martinez said he thinks that most drivers would comply and that having a law in place would make people more aware of the risks of texting. Mayor Leffingwell said it likely would take awhile for the public to get used to the ban, just as it took time for seat belt laws to gain public acceptance.

Part of me doesn't like this on principle: City Councilmembers are (or should be) lawmakers, not actuaries. You can’t ban through criminal law every behavior in life that creates a risk.

Also, regular readers know I'm highly skeptical of any public safety solution proposed because it will "make people more aware of the risks ." That's not the purpose of criminal law. If you want to send a message to the public, rent a billboard. Most of them aren't reading city ordinances in their spare time.

On the 3-foot buffer, I don't see why police don't already have plenty of authority to cite people for reckless driving if they swerve too near a cyclist or pedestrian - this is a solution pointlessly in search of a problem.

The texting while driving ban is a more interesting debate but my gut reactions incline me against it. For starters, it's basically unenforceable and runs counter to many people's routine life habits. As one Statesman commenter noted:
Until the city council can add more hours to the day or fix the traffic congestion problems, reading email on the phone will persist. When a commute to/from downtown takes 45 min - 1 hour thats productivity wasted unless the time can be reclaimed somehow. The most efficient use of time for some is to review emails for work on the way into work. Single parents (or other understandably over-busy persons) don’t necessarily have the time to do it later; multi-tasking is a way of life.
I agree and I don't think it's reasonable or even wise to ban that utilitarian behavior through criminal enforcement. Though I'm lucky enough to live close to downtown, I know a lot of Austin commuters who use their Blackberry that way, and it's not as though the city has provided adequate mass transit to give those folks other options.

Another Statesman commenter dubbed "Walksthroughthemud" identified some of the sources of my own skepticism about the proposed new ordinance:
In 1994, 5% of us had cell phones. Now 80% of us do and in that 15-year span guess what, traffic fatalities have gone...down (both in absolute terms and per miles driven, etc)! Yes, there a many other factors one must control for to analyze data like this but think about it - if DWT is so dangerous, how could it be possible that traffic fatalities have gone down dramatically while cell phone use has approached 100%? Well, here's one way - studies have shown that people that are talking on their cell phone while driving, drive slower and change lanes less often. Who knows, maybe DWT actually makes us drive safer??? Then there is the whole other issue of banning cell phone use while allowing other activities that are just as distracting like eating, applying make-up, reading (we've all seen it), swatting kids in the back seat, etc. Like many other laws in this country, this is nothing more that a do-gooder crusade that doesn't make any sense and politicians love.
Bingo! This drummed-up safety issue smacks of political grandstanding, mulcting more revenue from drivers in the name of public safety (much like red light cameras) without investing adequately in public transport or other needed solutions to traffic safety and congestion. I hope somebody with some common sense swats down this idea before it gets too far along.

Via Kuff.


Anonymous said...

This is awfully cynical of you Grits. For shame. ;)

The quote about fatality decline rightly notes there are other factors (such as airbags, decreased intox fatalities, Yugo halting production) that are the real drivers (no pun intended) in the decline.

It's also well known that studies focusing specifically on cell phone use show that such divided attention tasks ARE a significant contributor to accidents. Interestingly, the same studies find that talking *at all* on the phone is distracting and dangerous while most laws exempt hands-free devices. There isn't any evidence that hands-free is any better than cupping that gab-box to your cauliflower ear. The really useless laws are the ones that don't ban ALL phone calls and other electronic devices.

As far as fines vs. moralsuasion, I lived through the implementation of mandatory safety belts as a teen driver in Texas in the 1980's, and I strongly feel that if a fine hadn't been hanging over our collective mullet-sporting heads we would have been flying through the windshields of our Firebirds and pickups at unprecidented levels. And if there hadn't have been stiff fines for "Messing with Texas" we'd have landed on piles of refuse along the highway after being thrown free from the crash.

Nobody likes the nanny state. But to suggest there isn't any real evidence of divided attention tasks being dangerous factors in accidents, or any practical examples of fines effectively changing behaviors, is a teensy bit disengenuous methinks.


Patrick said...

Defending DWT because of your busy lifestyle is akin to defending your teenager's unexcused school absences because of his busy social life. No none has an absolute right to drive a vehicle. If you're punching keys and watching a tiny LED screen behind the wheel of a moving vehicle then you don't belong anywhere on the public thoroughfares.

Anonymous said...

You hear that kids?

No touching your radio if it has buttons for you to change the station and an LED screen to show you the frequency.

But I guess if you have one of the old AM analog radios it's ok.

The Patrick Has Spoken.

Jim said...


You had me at "You can’t ban through criminal law every behavior in life that creates a risk.".

This one of the best philosophies I've heard, but of course, as a politician, being "tuff on crime" gets you votes.

What exactly is, what some call, a Police State anyway? I don't know, maybe criminalizing every little behavior while restricting the rights of citizens to litigate torts under our judicial system. Wait a minute, we've already done that here in Texas now haven't we...

Great post and blog as usual. You're about the most thoughtful, thorough writer on any subject I follow. Keep up the good work!


Brody said...

Out of curiosity, how does Grits feel about DWI being a criminal offense? And further, how does Grits feel about the studies that show that texting while driving is at least as dangerous as DWI? Because this post is essentially an argument that DWI shouldn't be a crime either. After all, isn't that just "banning through criminal law a behavior that creates risk?"

It's also slightly disingenuous for grits to protest against such laws, and then to turn around and say that the reckless driving statute already addresses the share the road law. Isn't reckless driving just a criminal way to address risk?

Jim said...


Isn't it obvious that these new laws are just politicized efforts to elect or re-elect said Official? I think Grits statement was "every" behavior, not some, or those that are most egregious. Wouldn't trying on wacky sunglasses, slurping a smoothy, batting a Pinata, or changing pants (while driving) also create a risk? Should the Lege pass laws to ban all of those as well, or should common sense prevail and we accept the notion that these fall under "reckless driving" and are already covered? You make it sound like Grits would be in favor of legalizing DWI. Simply silly on it's face.

Anonymous said...

Jim: If I couldn't wack my pinata while I was driving down I-45 I just don't think we'd be living in a democracy anymore. ;)


Brody said...


There is plenty of research to indicate that texting while driving is, in fact, more dangerous than driving while intoxicated. That seems pretty egregious to me. When conduct is inherently dangerous, and extremely widespread, no, I don't have a problem with legislation to reduce that behavior.

Jim said...

This is one of those concepts(criminalizing every behavior that's possible while driving) that makes sense on the surface but is really a poor idea. I mean who isn't for fewer accidents? But with 85 million people admitting they talk on a cell while driving a new state law just won't help.

FYI: What about other causes of accidents fatalities:


"A new study by the Pacific Institute for Research and Evaluation shows that more than half of the highway auto accident fatalities in the United States are related to dangerous or deficient roadway conditions.

According to this news report, dangerous roadway conditions is a substantially more lethal factor than drunk driving accidents, speeding or even lack of using seatbelts...

So do we make it a crime to build and maintain dangerous roadways? This is a legitimate risk that could be reduced greatly, with the proper focus. It's easy to pass laws criminalizing every possible behavior.

We would disagree that it's needed in this case.

Lynn said...

What if you are just looking down at your phone to check the time or for directions, etc.? I use the "maps" feature on my iPhone all the time. How can they prove you were in the act of texting? Does the officer have to see your fingers moving across the key pad? How would you prove your're innocent? It just seems like trouble. I'm reminded of a story I saw on The Agitator blog recently about a case in a city where it's illegal to be on your cellphone and drive, and the officer pulled over a woman who he said was on the phone, and she said she did not even have her cell phone with her. In a situation like that, could that lead to the officer searching your purse, car and person for the phone? What if they ticket you - how would you appeal? In the case I cited above, the woman really did not have her phone with her, but how could you prove that later? I guess it's the same with speeding tickets, but still...

Anonymous said...

I'm surprised you did not mention that Congress is considering mandating that all states implement this as a matter of state law. If congress passes the mandate, states will be required to adopt the same or risk losing their federal highway funding.

Anonymous said...

Please park before wacking your pinata, preferably in some lover's lane if such a thing still exists.:~)

Mr. Anxiety said...

"If you want to send a message to the public, rent a billboard."


Stop treating the public like children that need to be given rules and consequences and start treating them like adults. Reason with them. Educate them.

R. Shackleford said...

Completely un-enforceable, and a waste of my tax dollars. You can't legislate stupid out of the public. There will always be fools among us. What's next, the "No Makeup Application While Driving" crusade? Every year we get a slew of new and pointless laws, so much so that now I believe that it's impossible for any citizen to make it through a single day without breaking at least one. It's gotten to the point where, if some leo feels like arresting you, he can easily find some pretext to do so. Makes me ill.

Brian McGiverin said...

As to enforceability, it may be questionable whether an officer could observe a person DWT (driving while texting), but should a person who's been in a car accident be suspected of DWT, it would be simple enough to subpoena their phone to determine if they had either sent or drafted a text within the time frame in which they had been driving. In lieu of that (e.g. if the phone is damaged), subpoenaed phone records should at least show went texts were sent. Further, such records could be used as rebuttal evidence if an officer cited you for DWT when you were in fact using your phone for maps or whatever.

An alternative to criminalizing it would be to make DWT prima facie evidence of negligence of the inevitable civil suit.