Police: Texting legislation may complicate enforcement

Sharna Johnson

Legislation aimed at criminalizing texting and driving repeats existing state law and has some gray areas that may complicate enforcement, police say.

The proposed bill would make texting while driving a misdemeanor punishable by up to 90 days imprisonment and $100, with stiffer penalties for repeat offenders.

It also would relegate a crash involving texting that results in death or injury to the level of vehicular homicide or great bodily harm by vehicle, which are third-degree felonies.

House Bill 197 cleared the house March 1 with a 58-7 vote and is now in committee, waiting to be heard by the Senate.

Specifying a crash involving texting as a felony through statute is probably the most unique thing about the bill, police say. However, existing law already allows for tickets to texting drivers.

Under the state’s careless driving law, a driver is required to give their “full and entire attention to the operation of the vehicle.”

That can cover anything that distracts a driver; from putting on make-up, to reaching down for something or texting, according to State Police Capt. Jimmy Glascock.

“I think that’s plenty sufficient to cover it,” he said. “(Texting and driving is) certainly enforceable under careless driving.”

And investigating officers are already conditioned to look for evidence of cell phone usage, he said, or for that matter any other driver distractants that might have contributed to a crash.

Pursuing a charge of vehicular manslaughter on the basis of texting is also possible on a case-by-case basis, but law officers must be able to prove the crash was caused by an act committed “carelessly and heedlessly in willful or wanton disregard for the safety of others,” according to statute.

“If you’re driving and texting … we would more likely consider that a careless act, not necessarily a willful or wanton disregard … depending on the nature of the crash,” he said.

Under existing statute, Glascock said in a case of a fatal crash where texting was a factor, his officers would consult prosecutors to make sure it met the legal standard for vehicular homicide.

But under the proposed legislation, texting would join DWI and the drug influence as an instant qualifier for vehicular homicide.

Glascock said sometimes even though it is legal redundancy, specifying legislation such as the proposed law can serve to draw citizen attention to an important issue.

“It’s worthy of some attention being shifted toward these types of inattentive driving patterns,” he said. “Some of the distractions can be as (equally serious to) being impaired (by drugs or alcohol). All it takes is a split second to have life-changing consequences in a crash.”

Clovis police Capt. Patrick Whitney said he knows the value of careless driving statutes. He’s given tickets to people who were reading a book or newspaper above the steering wheel or putting on make-up in the mirror while driving.

“Lots of people (text and drive), but lots of people also know it’s not the safest thing in the world to do,” he said.

The proposed statute, as he reads it, is careless driving re-stated, though it would take the question out of vehicular homicide, which he said often ends up at the mercy of a judge.

Whitney said there are some gray areas within the proposed law that could cause issues in proving offenses.

“It would be interesting to enforce, other than the obvious (cases),” he said.

For instance “texting” is defined in the bill as “reading, typing or sending a text message on a mobile communication device while driving a motor vehicle,” and also includes viewing and transmitting photos.

But a person holding up their phone to talk through the speaker is visually similar to a person reading a text message — or someone pushing in a phone number might appear to be sending a text message, he said.

To prove the criminal act, Whitney said officers would need to subpoena phone records from private companies, which can be a cumbersome and lengthy process. Phone companies give high priority to subpeonas involving violent crimes, and would not be as quick with a misdemeanor traffic violation.

“If you made that a regular thing,” Whitney said, “that would overload the whole system, plus that takes a long time.”

Whitney said officers look for evidence of texting in crashes and if a driver is obviously distracted, the avenues exist for a ticket.