Truth is the First Casualty of Lawmaking

Most reasonable people would agree that texting while driving, or a driver otherwise being distracted by using a mobile phone is typically a bad idea.  I agree.

But if California’s new laws about driving while using a mobile phone or texting was proven to have nothing to do with making our roadways safer, would you want to know about it?

What is corporate conglomerates that produced Bluetooth hardware, earbuds, and other hands-free devices promoted the new law to increase their profits?  Should their push to require the use of their products influence how, when, and where you can use your mobile phone if there was no safety risk of hands-free versus hands-on use?

Here is your look into how the California State Legislature functions, why certain laws are enacted, and maybe why lawmakers’ public approval ratings are dismally low.

First you need to understand that every single rule which controls the Legislature has a way to waive that rule.  Some say that flexibility is necessary to make sure that laws are thoroughly considered on the merits, so as to create the best public policy to serve the needs of Californians.

And if you buy that, then I’d like to also show you some land with great building potential along the coastline of New Orleans.

As term limits has taken hold in the Legislature, so has the need for new lawmakers to quickly make a name for themselves through attention grabbing headlines.  It has become an increasingly more common practice for lawmakers and committees to waive just about every rule for the sake of political expediency and personal notoriety.

Proposals for new laws are called “legislation”, and more commonly a “bill”.  As legislation works its way through the Capitol, each bill must stop at a “policy committee” to be heard and voted upon.  These committees are public hearings, and offer the opportunity for the public to provide its input.  The committee completes an “objective” analysis of the bill, and often attempts to include input both for and against the legislation.

So it might surprise you, then, that when there is only one letter of opposition, submitted a week prior to the committee hearing, that it was intentionally excluded from any mention in the bill’s analysis.  The committee’s response?  Because they have a special 7-day cutoff at noon, when other committees have a 4-day cutoff at 5pm.  While a week early, the letter, under the special committee cutoff, was 2 hours and 41 minutes too late to be included for public review.

So here it is (keep reading).

What could be the reason for special exclusion?  Well, if strict adherence to the rules is an anomaly, then it is more likely because the piece of legislation is a partisan headline grabber, like “Mobile Phones & Texting While Driving Bill Moves Through Legislature”.  Presumably this pinpointed ‘progress’ is needed because, while the majority party now has exclusive control over passing the state budget with a simple majority vote, the annual state budget is (again), late and has not been passed.

But the facts and evidence don’t support what the legislation does.  Senate Bill 28, authored by Senator Simitian (a prominent democrat from Palo Alto), is a clean-up bill to previous legislation which outlaws texting and mobile phone usage while driving (also by Senator Simitian).

But since the passage of the mobile phone prohibitions, people have begun looking at the facts and questioning the wisdom of California’s approach.  This year, the independent Insurance Institute for Highway Safety (IIHS), for example, has done a very good job of researching, analyzing, and presenting the facts about mobile phone usage while driving.  A multi-year, multi-state (including California), meta-analysis was recently completed and shows California’s prohibition on hands-on mobile phone usage while driving has had no measurable positive impact upon roadway safety or collisions.

In summary of the evidence based findings, it doesn’t matter if it is hands-free or hands-on, it is the actual conversation (and the distractions caused by that conversation), that contribute to traffic collisions. (See: http://www.iihs.org/research/qanda/cellphones.aspx for facts & research citations, especially FAQ number 4 and 9). “There is no evidence so far that banning hand-held phone use reduces crashes…” among other things.
There are numerous concerns over SB 28, including two constitutionally fatal flaws with respect to infringing upon a protected form of speech, and equal protection, stemming from flawed assumptions by previous legislation upon which SB 28’s conclusions are premised. 

No Matter Hands-Free, Nor Hands-On

The first concern is over cause and effect, and whether or not this legislation is necessary as a legitimately effective means of improving public safety through a reduction in traffic collisions.

Earlier this year, the Insurance Institute for Highway Safety (IIHS), released its findings from a multi-year meta-analysis of collisions, which reviewed multiple jurisdictions with anti-cellphone laws for drivers (including California), and control group jurisdictions without such laws.  The evidence from that multi-state study shows that cell phone bans don’t reduce accidents, and California’s anti-cellphone laws for drivers have had a statistically insignificant influence upon the rate and severity of collisions, despite a quantifiable reduction in drivers’ illegal use of mobile phone devices.
The reason for the insignificance of hands-free use versus hands-on use is attributed to the fact that the manner in which the cellphone is used is irrelevant, because it is the conversation itself that distracts drivers and contributes to collisions.  Therefore, the approach taken by SB 28 and previously related anti-cellphone legislation appears to be based upon erroneous conclusions, and seeks to address a mere symptom – but not the cause – of behavior which leads to collisions and thereby adversely impacts our level of public safety.

While the decision pertained to flag burning, as a related form of protected speech, the United States Supreme Court in Texas v. Johnson, 491 U.S. 397 (1989), held that Texas’ restrictions upon burning a flag were invalid because as to the “breach of the peace” justification, “no disturbance of the peace actually occurred or threatened to occur because of Johnson’s burning of the flag.” The Court rejected Texas’s claim that flag burning is punishable on the basis that it tends to incite breaches of the peace by citing the familiar test of Brandenburg v. Ohio that the state may only punish speech that would incite “imminent lawless action.”  Overwhelmingly, drivers who use mobile phone devices without hands-free are not imminently in collisions; such collisions are the exception, but not the rule.

Unconstitutionally Overbroad:  Why Restrict Parked ‘Drivers’?
The second concern, and one which perhaps ought to be fleshed out in a judiciary committee, is that SB 28 and Vehicle Code §23123 are unconstitutionally overbroad in their application to limiting protected speech.  The United States Supreme Court has consistently held that First Amendment protections may be limited by government when there is a compelling interest to serve the greater good (such as improving public safety).  But the reason must not be based upon shoddy evidence; the restriction must be so narrowly tailored with respect to time, place, and manner so as to accomplish the goal without going any further; must of course be content neutral; and is necessary to promote the goal which would be less effectively achieved absent the regulation.

By example, in Ward versus Rock Against Racism, the US Supreme Court clarified that such examples of allowable restrictions include “keeping the peace or preventing a probable harm from occurring – but not so broad as to prohibit otherwise benign activities which pose no threat.”  Ward, et. al., v. Rock Against Racism, 491 U.S. 781 (1989).

Through SB 28, as well as previously successful legislation on this subject matter, it is prohibited for any (non-emergency personnel) driver upon public roadways to use a mobile phone device while lawfully stopped at a traffic control device (i.e. a red light), as well as while lawfully parked upon the side of a public highway with the key in the vehicle’s ignition (even if the ignition is turned off).  Clearly, since in these two examples the vehicles are lawfully stopped and the driver is not, well, driving; and there is no credible threat to public safety, no chance of causing a traffic collision, and no basis whatsoever for California to restrict free speech in these situations.  Because SB 28 and Vehicle Code §23123 seek to prohibit free speech through hands-on mobile phone usage (which has superior sound quality and reliability to hands-free alternatives), the restrictions are thereby unconstitutionally overbroad.

Through a larger body of caselaw, the Supreme Court has consistently held that a restriction upon protected speech is narrowly tailored only “if it targets and eliminates no more than the exact source of the ‘evil’ it seeks to remedy.”  Frisby v. Schultz, supra, at 485.  But SB 28 prohibits hands-on mobile phone usage by the driver while driving, while stopped, and even while parked.

Additionally, California law already addressed vehicle code related breaches of the peace via reckless driving and other infractions.  SB 28 and related previous legislation pose no new remedy for safer driving, and as seen by the IIHS findings have failed to demonstrate any actual improvement in public safety.

Shoddy Evidence

The material evidence presented in support of previous legislation upon which SB 28 is premised, specifically that which was compiled and presented by the California Highway Patrol, contains unsupported conclusions which would not likely withstand peer review by academics, nor be recognized as methodologically reliable to the point which public policy should be adopted.

The previously referenced IIHS study findings show beyond all doubt that California’s public safety claims over the method in which mobile phone devices are used by drivers are without merit, and the cause for the dangerous behavior (contributing to collisions) is in fact the distraction of the driver having conversation itself – regardless of whether it is hands-free or hands-on.  SB 28, and prior legislation, does not address the conversation by the driver at all through its allowances and penalty increases, and the claims upon which SB 28 are based at this point appear to be without merit.

In Renton v. Playtime Theatres, Inc., 475 U. S. 41 (1986), the court held that a jurisdiction may place restrictions upon protected speech when that jurisdiction reasonably believes the material evidence is relevant to the problems it seeks to address. (at pgs. 51-52)

However, when direct doubt is cast upon on the jurisdiction’s rationale – as it has been by the meta-analysis by IIHS disproving CHP’s conclusions – and it is shown that the jurisdiction’s evidence does not support its rationale, then the burden shifts back to the jurisdiction to supplement the record with evidence renewing support for a theory that justifies its restriction. See, e.g., Erie v. Pap’s A. M., 529 U. S. 277, 298

Personal Calls on the Public Dime

There is a flaw in the wording of Vehicle Code §23123 with respect to ambiguity over when and how emergency personnel may use their mobile phone device hands-on while driving.  As written, SB 28 (and Vehicle Code §23123), denies non-emergency personnel equal protection under the law and without a compelling government interest to do so.

For example, an emergency service professional is exempted under the law if operating an official vehicle, but this is the only qualifying criteria.  Even if the emergency personnel are using their personal phone for a personal call which has nothing to do with their official capacity, the language in Vehicle Code §23123 is so ambiguously permissive that citizens subject to the prohibition could similarly use their personal phones for the exact same conversation but be subject to penalties.

Form v. Function

Finally, someone will undoubtedly argue that all of the prohibitions within SB 28 and Vehicle Code §23123 are permissible, because under California law, operating a motor vehicle is after all a privilege and not a right. 

However, a simple comparison of true privileges against established rights, and that argument fails the laugh test.  For example, a permit to carry a concealed weapon (CCW), is a true privilege.  With CCW permits, the issuing authority may deny, revoke, or refuse to re-issue a permit, or place any restrictions whatsoever upon the holder at whim, and there is no recourse or right to appeal unless the issuing authority fails to exercise any discretion at all (cf. Pitchess), or overtly denies access to CCW permits due to race, gender, or other protected status.

Drivers licenses, on the other hand, are freely issued to all citizens and even specified non-citizens who pass a series of simple tests; and may only be revoked or restricted under specifically restricted circumstances, with the drivers having the right to appeal any adverse decision.  Subject to the form versus function test, while the form for driving licensure is called a privilege, it clearly functions as a right which may not be removed outside of uniformly inculcated administrative procedures.  As such, First Amendment and Fourteenth Amendment protections apply in full force.

As a solution to much of the aforementioned concerns, the California State Legislature could consider the following changes in law to truly improve public safety on our roadways and become constitutionally compliant:

1)                              limit all mobile phone device usage (hands-free or not), while operating a motor vehicle upon any public highway, because the conversation itself is the true threat to public safety.

2)                              waive the restriction upon drivers who are lawfully stopped at a traffic control device, or lawfully parked upon the side of a public highway in a designated ‘parking’ space, until such time as they are again moving; and

3)                              clarify that emergency personnel must be using a department issued mobile phone device and be discussing official business on said device, or else they are subject to the same prohibitions as everyone else.

Senate Bill 28 will be heard in the Senate Committee on Transportation and Housing on Tuesday, March 29th, after Floor Session in Capitol Room 4203.

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About Capital Alliance, Strategic Advocacy & Public Relations Firm

A 20 year veteran of the Capitol, Matt Gray has worked on every major public policy issue to come before the California State Legislature. He has worked as both as a Deputy Chief of Staff to the Dean of the Legislature, and most recently as a contract advocate for numerous HiTech and information technology (IT) clients as well as a venture capital firm on developing emergent technologies. Formally educated in communications and public relations, as well as the organic chemistry, Matt has extensive technical experience. In 2010, Matt was elected by Sacramento voters to the City Council for the proposed formation of Arden Arcade as California's newest city. While cityhood for Arden Arcade was ultimately defeated, Matt remains an active member of his community, and is known for being a strong proponent of improving California's small business climate. Matt is often called upon by the media for interviews on public safety and energy matters, juxtaposed with the Governor, Speaker of the Assembly, and Senate Pro Tempore. He has also been a repeat guest on POWER 106 in Burbank, and on the Bruce Maiman show, Talk 1530 AM, KFBK, as well as The John & Ken Show, AM 640 in Burbank.
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