Watching judges and legislators struggle with how to deal with new-ish technology is painful at best, outrageous at worst. As courts roll out deeply absurd and/or unworkable rulings on things like cell phones and texting, I’m reminded of what it was like to watch the law in the late 1990s, when everyone – judges and otherwise – was utterly confounded by these “mp3s” and certain we’d never really have to deal with them because they were some esoteric thing that would probably die out. Lately, courts have been making some very bewildering decisions about when you can touch your phone in the car and who else should be touching a phone when you’re in your car.

A few months ago, a Fresno, California Superior Court panel ruled that you couldn’t touch your phone even if it was acting as your GPS at the time you were touching it. The California code has a provision which states that “a person shall not drive a motor vehicle while using a wireless telephone unless that telephone is specifically designed and configured to allow hands-free listening and talking, and is used in that manner while driving.” The appellant argued that the prohibition in the statute was only designed to address listening or talking on your cell phone. The court disagreed and focused on the idea that it was the distraction itself – the distraction of picking up a phone, of touching a phone – was what the statute sought to address.

Discussions about the case have zeroed in – correctly, I think – on a couple of points. One is the obvious absurdity that there’s no similar automatic liability provision in the law for flailing around with your paper maps. (Do people still use those?) Put another way, with other non-phone distractions there’s an assumption that you can do certain common car activities – glance at a map, fiddle with the radio, yell at children in the backseat – and not inherently be on the hook for distracted driving. Indeed, at least one California judge has explained that this decision means using a standalone GPS (like a Garmin) is legal while using your cell as the GPS is not. In flailing about trying to deal with the (admittedly really terrible) problem of drivers who are distracted by their technology, we’ve chosen to behave as if the technology invented the problem.

This is even more evident in a decision out of New Jersey last month where the appeals court held that if an individual outside the car is texting the driver and knows the driver will read the text immediately, the sender has taken a foreseeable risk and “knowingly engaged in distracting conduct” and could be held liable. The court neglected to explain how a sender will know (a) that the person receiving the text is driving and (b) that they will read it immediately. Short of a text message in which I tell you I’m hopping in the car right now and will read any messages you send me ASAP, I’ve no idea how to establish this knowledge.

In part, the court’s holding seems a bit driven by amazement/annoyance at how much teenagers text:

Best’s cell phone record showed that he and Colonna texted each other sixty-two times on the day of the accident, about an equal number of texts originating from each. They averaged almost fourteen texts per hour for the four-and-a-half-hour, non-consecutive time-span they were in telephone contact on the day of the accident. The telephone record also showed that, in a period of less than twelve hours on that day, Best had sent or received 180 text messages. In her deposition, Colonna acknowledged that it was her habit also to text more than 100 times per day

These numbers may seem extraordinary if you didn’t grow up texting, but they’re not outrageous. In framing the amounts in a way that intimates they’re excessive, it helps lead to a conclusion that teenagers are impulse-driven texting machines that can only be stopped by removing the offending technology entirely.

At first blush, the “don’t text drivers” holding sounds a bit like a dram shop law and other drunk driving laws. You can’t serve someone more liquor when they’re obviously intoxicated and you can’t let them get behind the wheel when you know they are drunk. This doesn’t seem quite akin to those, however. Rather, it’s more like you shouldn’t give a completely sober individual a gift bottle of liquor if you have reason to know they’ll consume it on the drive home. Theoretically, a situation might arise where you know that much about a person’s habits (texting or drinking) but it is almost inconceivable to think about proving that in court or behaving in a cautious enough fashion that you’d always avoid that liability.

After 15+ years we’re still thrashing around trying to figure out the issues created by digital transmissions of music, movies, and books. Let’s hope it doesn’t take the courts that long to sort out how to handle the intersection (pun not intended but clearly not avoided) of technology and driving.



  1. Sam Glover says:

    Reminds me of Newt’s confusion over what to call a smartphone:

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