There has been some press about the recent passage in Indiana of a ban on “texting while driving”. It must have been the lawyer in me, but I became curious about how this ban was worded. What precisely, I wondered, has been banned? So I looked up the enrolled act.
First, we need to look at a few terms that are defined, either by this newly enacted statute, or elsewhere in the Indiana Code:
(a) “Telecommunications device” … means an electronic or digital telecommunications device. The term includes a:
(1) wireless telephone;
(2) personal digital assistant;
(3) pager; or
(4) text messaging device.
(b) The term does not include:
(1) amateur radio equipment that is being operated by a person licensed as an amateur radio operator by the Federal Communications Commission … ; or
(2) a communications system installed in a commercial motor vehicle weighing more than ten thousand (10,000) pounds.
Indiana Code § 9-13-2-177.3.
Is it just me, or is that definition a bit circular? “Telecommunications device” is an “electronic or digital telecommunications device”. Um. OK. And take note of two things that are not specifically included within the definition: telephones (other than wireless telephones) and computers (this omission will be relevant when we look at the definition of “text message” below). Also, why are ham radios and “big rig” communications systems excluded? (And in (b)(2), does the 10,000 pounds refer to the commercial motor vehicle or the communications system?)
“Text message” means a communication in the form of electronic text sent from a telecommunications device. Indiana Code § 9-21-8-0.5.
Note that “electronic text” is apparently undefined (a quick search of the Indiana Code found no uses of this phrase other than in this statute). Anyway, think about the definition of “text message” with reference to the definition of “telecommunications device”. Ask yourself this: Is a message sent from a laptop computer to a cell phone a “text message”? When I receive a text message from AT&T telling me that my wireless bill is now available, is that a “text message” as defined by the statute (I’m willing to bet that AT&T uses a computer to send those messages rather than a “telecommunications device”).
So, with those definitions in mind, let’s look first at the existing ban that applies to probationary driver’s licenses (i.e., licenses for drivers under 18): A person driving under a probationary license:
[M]ay not operate a motor vehicle while using a telecommunications device until the individual becomes eighteen (18) years of age unless the telecommunications device is being used to make a 911 emergency call.” Indiana Code § 9-24-11-3.3(b)(4).
Now, compare that prohibition to the newly enacted (and effective as of July 1, 2011) ban on “texting while driving” (Indiana Code § 9-21-8-59):
(a) A person may not use a telecommunications device to:
(1) type a text message or an electronic mail message;
(2) transmit a text message or an electronic mail message; or
(3) read a text message or an electronic mail message;
while operating a moving motor vehicle unless the device is used in conjunction with hands free or voice operated technology, or unless the device is used to call 911 to report a bona fide emergency.
(b) A police officer may not confiscate a telecommunications device for the purpose of determining compliance with this section or confiscate a telecommunications device and retain it as evidence pending trial for a violation of this section.
Notice anything odd or any problems?
For one thing, what is the definition of “electronic mail message”? (I did another quick search in the Indiana Code and while I found a definition of “commercial electronic mail message” in Indiana Code § 24-5-22-2, the definition itself uses the term “electronic mail message” and the definition is limited to that chapter of the Indiana Code.) Nevertheless, I suspect that we can find substantial agreement on what is (and maybe more importantly, is not) an “electronic mail message”. But query whether a message posted within Facebook is an electronic mail message?
OK. So I can’t read or send a “text message” or “electronic mail message”. But can I read a webpage? Can I type a grocery list on my iPhone? Can I type an address into my dash-mounted GPS (and query whether a dash-mounted GPS is a telecommunications device) or my iPhone’s mapping utility? Can I use a location app like Around Me to find the nearest Domino’s and order a pizza? Can I read what others have posted on my Facebook wall or on Twitter? Does it matter if they posted from their cell phones (which are telecommunications devices) or their computers (which aren’t)? Can I play a game on my iPad. And what if the message that I want to send (or review) has no text at all, but is, instead, just a photo? Recall that the definition of “text message” is a “communication in the form of electronic text” (emphasis added). In fact, given that the definition of “text message” requires that the communication be “sent from” a telecommunications device, query whether (under a hyper-technical reading of the language) typing a “text message” is actually banned because that text didn’t become a “text message” until actually sent.
Note, too, that the law is limited to times when the person is “operating a moving motor vehicle”. In other words, it appears that if you’re sitting at a stop light or stuck in non-moving traffic, you can send and read text messages to your heart’s content.
One more thing: Note paragraph (b) of the statute. If a police officer cannot confiscate the telecommunications device, how will the officer ever be able to determine if the driver was sending a “text message” or using the telecommunications device for a purpose not prohibited by the law (“No, officer, I wasn’t typing a text message; I was using my address book to look up a phone number”)? And even if the officer could make that determination, at trial, it will be the word of the officer against the word of the driver given that any evidence from the telecommunications device will be long gone.
I’m not advocating reckless driving. I’m not advocating that people play technical games with the statute. We all understand the legislature’s intent. Rather, my real purpose here is to make Hoosiers aware of just how poorly some of our statutes are drafted. I suspect that most of you, even those who aren’t lawyers and who’ve never served as an elected official, could craft a better statute, with fewer proverbial loopholes, in little or no time.
Statutes like this one are designed to keep our roads safe. We ask a lot of our legislators, but I don’t think that asking them to carefully think through statutes and to be sure that they are well-drafted is asking too much. After all, isn’t creating laws to keep us safe one of the principals roles of a legislator? And next time you hear about someone being acquitted “on a technicality” just remember that there are many, many more laws just like this one.