Austin’s ban on driving while texting went into effect on New Year’s Day. I’m eagerly awaiting the ban on daydreaming while driving, looking at a pretty sunset through the window, and clapping along when “My Best Friend’s Girl” comes on the radio, to ensure that this quest to keep the city streets safe continues along this logical path.

Okay, yeah – it’s a stupid law. For multiple reasons. We can pick and choose among them, if we like (I’ll see your “lots of things are distracting for drivers” and raise you a “reckless driving is already illegal”), but the thing that sticks in my mind is how unenforceable it is. And when I say “unenforceable”, I don’t mean “unlikely to be enforced” – at $500 a pop, I’m pretty sure that motorists are going to find themselves on the receiving end of APD enforcement efforts. I mean that the actual law, as it’s written, is impossible to enforce without ticketing people for things that are completely legal.

Here’s the basic rundown of the law: Using a phone – the devices that are restricted have to be attached to a commercial mobile service – to do anything other than make a call, unless the car is stopped at a red light, is banned. That means that changing the artist who’s playing on your iPhone is illegal. You know what’s not illegal? Changing the artist who’s playing on your iPod Touch, which is a virtually identical piece of hardware that doesn’t connect to a commercial mobile service. One behavior is so dangerous that it needed to be outlawed, while the other is a-okay, and there is literally no difference between them, other than whether the device is connected to AT&T’s network. I’m not totally clear on how the law affects a phone that’s set to “airplane” mode, but I knocked on David’s door to get his take on all of this.

“The key word here is ‘overbroad’,” he said. “This is basically a license to pull over anyone for any reason. A police officer could say, ‘Oh, I thought he was texting. I was wrong, but I searched the car and found drugs.’” He explained to me – a non-lawyer who knows not the technical terms – that statutes are found to be unconstitutional for two reasons, most of the time. Either they’re void for vagueness, or they’re overbroad. The initial draft of the bill had problems with vagueness – it made it illegal to look at a text message, but not illegal to look at your phone to check an email (it also accidentally made it illegal to answer a phone call, but not to make one). The revision that went into effect on January 1st added the language “or engage other application software”, which eliminated some of the vagueness (though we’re still unclear on what the exact definition of “dialing” is – I use an iPhone, and I have to open my “phone” app, and then cycle either to “keypad” or “contacts” before I can make a call)… But it’s hard to argue that it’s not overbroad.

David asks, when investigating overbroadness: “Can every single police officer enforce the law in the same way?” I think it’s pretty difficult to insist that they can, when it involves a device that fits in the palm of the user’s hand, in many cases looks identical to a device that’s not outlawed by the ordinance, and features certain applications that are legal, and that appear indistinguishable from other, illegal applications.

Austin City Councilman Chris Riley, meanwhile, insists that the new language, “is broader but it really is about safety.” I know Chris Riley a little bit – we did an interview when he was a candidate in early 2009 for another outlet to which I contribute – and I don’t doubt that he believes what he says. It’s hard to argue it, even, and the notion that we’re made safer when socially undesirable acts like texting while driving are outlawed, as opposed to merely frowned upon, carries some water. So here’s a solution, courtesy of the techies over at Unicom – it can still be illegal to text while driving, but, they say, limit to to what’s called a secondary offense.

This means that peace officers wouldn't be pulling people over for using cell phones. Instead, they'd pull somebody over for swerving or running a stop sign or not watching the road, and then cite them under subsection (B) if they were found to be using a cell phone dangerously. This is consistent with the way the Austin Police Department says they plan to enforce the texting ordinance.

That sure seems like the best of both worlds to me. It still puts an increased social pressure on people to put the &$%#ing phone down while driving, which is something we would like to see happen, without giving APD carte blanche to pull over anyone on suspicion of having texted.

David, meanwhile, wanted me to mention that, while we’ve agreed as a New Year’s resolution not to take on any more pro bono cases, if you do find yourself cited under the texting ban, depending on your circumstances (hint: not texting while driving while drunk behind the wheel of a stolen F-150), you should give us a call and we’ll see about fighting this together at what would probably be a really affordable rate.

Labels: APD, driving while texting, over-criminalization

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We took a little time off from the blog as I tried in vain to learn how to create a Wordpress theme from a Blogger template – a process that requires greater coding skills than I possess – and with that project shelved, we’ll just be using Blogger as our host for the time being. (If anyone reading this knows how to enable RSS on a blog that refuses to offer the option, email me, please.)

Anyway, as we get back in the saddle, we’ll start with a round-up of some of the stories that we missed.

Florida criminal defense attorney Brian Tannebaum put together a thoughtful post on whether or not it’s a good thing for the defense to appear on the news, as it relates to the alleged Letterman extortionist’s attorney. That lawyer opted to show up on the Today show, where his basic argument for his client was, “He was a journalist for 20+ years, so he’s obviously too smart to have done this”. It didn’t exactly wow Matt Lauer or Ann Curry, and the whole thing made his client look like he had no real defense. Which brings up a valid point: Does it benefit you, the attorney, to go on the news, or does it benefit your client? If being on TV helps you, but not your client, you may opt instead to pay for some commercials.

Robert Guest, a defense attorney from Dallas, talks about something I’d found myself discussing with friends in the wake of the Polanski arrest: Why it’s more important that a suspect’s rights aren’t violated when we’re all pretty sure he’s guilty. Guest’s example is Hughen v. State, a case in which a suspect was interrogated after requesting an attorney, because the police insisted that he should sign a form that they assured him wasn’t waiving his rights, which he did. In that case, as in Polanski’s, it seems very likely that the person in question was guilty of the crime with which he was charged. While the issue in Polanski’s case involves ex parte communication between the judge and the prosecutor, the basic issue is the same – defending the rights of people who probably did the thing they’re accused of means that we’re all safer if we’re ever accused. Because if the state can’t make its case without violating a suspect’s rights when they’re right, what do you think they’re going to do when they’re wrong?

I was born in Indiana. I claim Texas as my home state, and I’m proud of it. I’ve never exactly been ashamed of Indiana, but it’s not the coolest place on earth. But here are a pair of stories that explain why shame might be an appropriate thing to feel when discussing the Hoosier State: 1) A grandmother was arrested for purchasing two boxes of pseuphedrine-containing cold medicine in a single week because her grandchildren – triplets – were sick. The state documents who buys these products (like they do most places, since they can be used to make meth) and then arrests those who buy too much in too short a period. 2) The Indiana Court of Appeals ruled that “reasonable suspicion”, rather than probable cause, is sufficient for police to take DNA evidence in the form of a cheek swab from a suspect. The post, from the indispensible Simple Justice blog, goes on to detail exactly what we mean when we talk about “slippery slopes”.

There’s also a semi-debate regarding texting-while-driving laws, which Austin is about to pass as a city ordinance. Grits for Breakfast (Central Texas’ finest source of criminal justice commentary) argues that the law is essentially meaningless and an ad campaign detailing the dangers of DWT would be a better use of resources, while Simple Justice finds that tweaking such laws so that a person couldn’t be stopped by police solely on suspicion of DWT would address most of the concerns. The discussion spills into the comments section of Simple Justice, with Grits and SJ both making some fine points. And, since this is a concern that’s likely to play out in Austin streets, it’s worth paying attention to now.

Labels: driving while texting, in the news

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