Effective July 2017,Washington has expanded its law against talking on a cell phone while driving into a much broader law prohibiting various kinds of ‘distracted driving’. It is still likely that the first six months will be used by law enforcement for warnings and education time, and we will see very few citations written. And while as of today the new sections have yet to be ‘codified’ and so are difficult to enforce, understand that this is now the law of Washington and police will surely be writing tickets soon.
Personal Electronic Devices
This new law outlaws a number of previously lawful acts. As such, it is a significant broadening of the state’s power to regulate driver conduct. First, it is now illegal to use not just a cell phone, but any “personal electronic device” at all while driving on a road. The previous version of the cell phone law, passed in 2013, prohibited only “a person operating a moving motor vehicle while holding a wireless communications device to his or her ear”. While the previous version only applied while the vehicle was moving, the new law redefines “driving”, heretofore best known as an active verb. For purposes of this legislation, “ "drive” means to drive, operate, or be in physical control of a motor vehicle in any place open to the general public for purposes of vehicular traffic.” If you are thinking that sounds a lot like sitting in a car in a grocery store parking lot, you may well be right. Under the prior law, it was generally understood that if the car was stopped, neither talking on the phone nor texting was prohibited; the law wasn’t triggered unless the car was in mortion. The new law, however, goes on to explain that the word “drive” includes being behind the wheel “while temporarily stationary because of traffic, traffic control device, or other momentary delays.” So being stopped, at a red light or even a railroad crossing, is not a defense to a charge of using a device while behind the wheel. And while previously only phones were cause for a ticket, it is now any "Personal electronic device". This includes (but, significantly, is not limited to) a cell phone, tablet, laptop, two-way messaging device, or electronic game. Interestingly, the law specifically excludes “two way radios” and CB radios.
More troubling, the law offers a new and quite creative definition of the word “use”, to include: “Holding a personal electronic device in either hand or both hands, or using your hand or finger to compose, send, read, view, access, browse, transmit, save, or retrieve email, text messages, instant messages, photographs, or other electronic data” (the statute explains that this does not preclude the minimal use of a finger to activate, deactivate, or initiate a function of the device, although it is difficult to imagine a manner in which a driver could perform that minimal use without holding the device and still violating the law. Also, fines double on a second offense.
So in the context of a cell phone, it has become illegal to do anything except touch to activate while the car is on a road. Operation of a hands-free or Bluetooth connection still appears safe as long as the phone is not in your hand, and as long as the conversation doesn’t “dangerously distract” the driver.
Dangerously Distracted
The second significant change is the new “distracted driving” portion of the statute. It is now an infraction to drive “dangerously distracted”, and anyone who does so “must be assessed” a financial penalty. According to this law, a dangerously distracted driver is “a person who engages in any activity not related to the actual operation of a motor vehicle in a manner that interferes with the safe operation of such motor vehicle on any highway.” If that sounds vague and disturbingly open to the subjective interpretation of an officer, that’s probably because it is. “A manner that interferes with the safe operation” of a car doesn’t necessarily mean actual dangerous driving. It certainly doesn’t mean that a crash happened or even nearly happened. It seems to mean an activity, whether it’s talking on a phone, eating, putting on makeup, that an officer deems an interference with driving, without any statutory requirement for evidence that the actual driving was compromised. It would be an entirely different law if it prohibited distracting behaviors that result in actual dangerous, or impaired driving. This only prohibits activities believed to interfere with the driver, not activities that caused poor driving.
For example, imagine a traffic patrol officer sees a speeding driver with a dog in her lap. She may come to the conclusion that a dog in the lap interferes with the safe operation of the car because a dog may make a sudden movement that restricts the driver’s range of motion, or that may interfere with the driver’s vision. The officer may conclude that the dog is a therefore an interference with the safe operation of the car. The officer may decide to issue the citation based on that conclusion, despite the driver not actually having any difficulty operating the car, and despite having no evidence that the driver’s ability to operate the car was ever actually compromised.
When a statute is subject to interpretation, we tend to think that the court system will sort through the issue and make sure that laws are enforced fairly. In court, a driver could contest such a ticket, and hope that a judge interprets the somewhat vague statute in the same was she does. But the reality of the infraction court process is that it does not favor the driver. At a court hearing, the state is normally represented by a prosecuting attorney, and in the vast majority of cases the driver is not. Hiring a lawyer for a $136 ticket is cost prohibitive, and public defense attorneys are not available for infractions. But aside from the disadvantage to the driver at the court hearing, there is the reality that a very small percentage of infractions ever make it to full contested hearing in court, where a judge is asked to rule on the merits of the citation. A small percentage of drivers actually contest tickets. Some can’t afford the time off work, some are intimidated by the process, and many just accept the officer’s authority as the final decision that they did wrong.
In Washington in 2016, over 700,000 infraction citations were filed, representing a total of over 860,000 infractions (many citations allege multiple violations). Of those, drivers requested less than 100,000 contested hearings, and fewer than 10,000 were found to be ‘not committed’ (about 135,000 were dismissed, presumably for other reasons). Over 200,000 drivers didn’t respond to the tickets at all, and about 300,000 just paid the ticket. About 106,000 requested mitigation hearings, meaning they did not challenge the validity of the charge, just requested that the judge reduce the fine. Overall, more drivers pay the ticket than contest it; more drivers don’t respond at all than contest the ticket; and more just come to court and admit the violation and ask for a break on the fine, rather than contest it. In case you wondering, infractions represented over $100,000,000 in total revenue in 2016.
The new distracted driving legislation marks a substantial change in the law of the state of Washington. Whether you agree it is a good change or not, it’s a good idea to be familiar with it. It’s going to be expensive for those who aren’t.