The Ban on Texting Bill: A prime example of what’s wrong with Montpelier

Recently in the media and in Montpelier, a certain bill out of the Vermont House is getting a lot of attention. That bill is H. 496, entitled “PROHIBITING TEXTING WHILE OPERATING A MOTOR VEHICLE.” On its face, this bill seems yet another effort by our legislature to do some good in the world, but the reality is that this bill is a prime example of what’s wrong with the way our government works.
The bill makes it a crime to use your cell phone to text message while driving. It provides for a graduated penalties from a $750 fine and up to two years in jail for a first offense, all the up to five years in jail and a $2,500 fine for a third offense. The bill clearly takes a very hard line on distracted driving. So what could be the problem? Actually several things are wrong with this bill.
First, how did this bill suddenly come up and get traction? It appears that the Federal Government decided that the states needed to clamp down on this issue, so they tied a portion of their federal highway funds (I believe 25%) to the passage of this bill. In other words, you will only get 75% of your yearly federal money for highways if you don’t do as we say. While such coercion has been ruled “constitutional” by our Supreme Court, this smacks of a federal intrusion into state affairs. Another move to render the 10th Amendment meaningless. A clear move to usurp local control by a centralized authority. On principle alone, I would vote against this bill, but principles seem to carry little currency these days.
Second, the bill is redundant. Vermont already has a anti-texting law in place, its called “negligent operation” (23 VSA Section 1091). Negligent operation applies to any driver who operates his vehicle in a negligent manner. Negligent operation is defined as “negligent operation in violation of this subsection shall be ordinary negligence, examining whether the person breached a duty to exercise ordinary care.” Clearly texting while driving is a "breach of duty to exercise ordinary care.” Ergo, a law enforcement officer can cite any driver for texting while driving as it is negligent operation almost by definition. Additionally, the penalties provided for in the Negligent Operation Statute are similar if not the same as ban on texting. So if the crime is the same, and the enforcement is the same, and the penalties are the same, then why do we need another law when we should be enforcing the existing law we have on the books? More laws don’t make a better world.
Third, the bill does nothing to prevent the offense, only punish it after the fact. For those who think that laws serve as a deterrent, think again. Responsible people don’t break laws, generally. And my experience has been that no one currently sitting in court or in jail really thought to themselves, I shouldn’t do this because it is illegal. Most don’t think they would be caught, much less whether it was legal or not. Some people are incredibly stupid and no amount of additional law making can make up for that. People do stupid things and innocent people get hurt. I am not sure how having an additional law on the books will make up for the tragedy that results nor necessarily prevent them. Citing a teenager for texting after she/he rapped his/her car around a tree seems of little use or significance. The key is how do we prevent the behavior, not how to punish it.
My point is that the legislature has two ways to seek enforcement, either as a primary offense or a secondary offense. A primary offense is one in which the officer can conduct a motor vehicle stop if he suspects that an offense is or has occurred. A secondary offense is one in which the officer discovers a violation subsequent to a legitimate stop for another offense. An example of a primary offense is a missing headlight. The officer drives by and sees one of your lights out. He can stop you to investigate the condition of the car. A secondary offense would be if the officer stopped you for a missing headlight and found that you were not wearing your seatbelt. He could then cite you for a seatbelt violation.
With this bill, the legislature will have to decide when enforcement takes place. If it is after the fact (secondary) then the law is almost meaningless unless the offender was stupid enough to continue texting after being pulled over. If it is before the fact (primary), then it opens a whole can of worms. How would an officer know that someone was texting? Wouldn’t such a law provide an easy pretext for Officers to conduct random stops? Since such a stop would be considered a legal investigation, the officer would have the right to visually search your vehicle even if in the end he can’t prove you did anything wrong.
My fourth and final point is this bill assumes that we are all children and know not what we do. Seriously, does Montpelier believe that parents, students, driving instructors, and the rest of society does not understand that trying to text while driving is a bad idea? I have yet to meet any parent, teacher, or young adult who thought it was a good idea. I have a daughter who is learning to drive, and I have yet to encourage her to drive while distracted. In fact, both my wife and I emphasize to her that any distractions (food, conversations, phones, radio) lessen her ability to drive safely. And we do this in absences of any bill to that effect. So how does this bill do something we aren’t already doing?
Overall, like so many other pieces of legislation passed in recent years, the ban on texting while driving bill sounds really good, but does very little. It treats the average driver like a child. It creates redundant laws ripe for abuse or rendered meaningless by circumstances. It serves only to highlight the intrusive nature of the federal government and the subservience of our state governments. Ultimately, it’s a feel good bill that further clogs the statute books, courthouses, and jails without significantly addressing the real problem is claims to correct. It is the prime example of what’s wrong with Montpelier