Washington Traffic Law Blog : Washington Traffic Lawyer & Attorney : Jon Zimmerman Law Firm : Seattle, Bellevue, Tacoma

Yesterday the Washington House of Representatives reversed itself by passing the Washington Senate's version of a cell phone/texting bill, which the Governor is expected to sign.  

What does this mean to drivers in the State of Washington?  It means that if the bill becomes law (and it's really more a matter of when than if), police officers will be able to stop motorists who are holding cell phones and/or texting while driving without witnessing another offense.  Current law allows the police to issue traffic tickets to motorists for holding a cell phone or texting only if some other primary driving infraction (e.g., speeding, improper lane change) is being committed at the same time.  

Proponents think the new legislation will save lives; opponents see government intrusion and wonder why other activities such as smoking, eating, and putting on makeup are not similarly made primary offenses.  

As an attorney who deals with traffic offense cases every day, while I strongly support measures that make roadway users safe, I also believe in providing the driving public with incentives--especially economic ones--that will make drivers alter behavior in a positive way. 

The new legislation, while making cell phone and texting infractions primary offenses, prohibits the offenses from becoming part of a driver's record that is available to insurance companies.  Here, the Legislature creates a monetary penalty for the offenses, but says "hey, we don't want this offense on a driver's record, because even though we think this type of driving is so outrageous, and there is a major safety issue here that we must spend a ton of time with in this legislative session, we don't think it's really worth telling the public about or insurers."  Instead, the Legislature sends the following message:  the conduct is so unsafe that we don't want anyone to know the people who perform this unsafe behavior, so we will not punish through insurance increases anyone who breaks the law and we will not reward those who choose to obey the law.  

There's a reason that the word "law" is in the word "flaw."  The Legislature could have done a much better job by passing a bill that actually helps people who obey the restrictions obtain better insurance premiums.  After all, if the conduct is so dangerous, than clearly risky drivers ought to assume a greater financial burden.  But the Legislature didn't care about that, and instead chose expediency over substance, a common theme in this session.  

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Today the Seattle Times called the House of Representatives the "House of Wimps" in an editorial about the Legislature's failure to pass a distracted driving law.  I don't wholly disagree with the Times, but House members and senators are wimps not because they couldn't pass a comprehensive law, but rather because the bills lack any real incentive to improve public safety.  

A few years ago the Washington Legislature made texting and talking on a handheld wireless communication device civil traffic infractions punishable by a fine.  However, the Legislature made these infractions secondary offenses, meaning that police officers can only stop drivers who are allegedly committing some other, primary traffic violation.

Since these laws took effect, many citizens and some legislators have wanted to go a step further by making the texting/cell phone bans primary offenses.  Others, including some legislators who serve as police officers, criticized the move as going too far, at least as far as non-texting, verbal cell phone communication goes.  

What the Legislature wholly fails to address - and why I think the bills sponsored by Senator Tracey Eide (D-Federal Way) and State Representative Reuven Carlyle (D-Queen Anne) are inadequate - are incentives for the driving public to be better drivers.  If you buy the conclusion that texting and/or talking on a handheld wireless communication device, combined with driving, is dangerous - then why would you not want to punish the people creating the danger and reward your constituents who don't create the risk?  

The bills don't envision any reward/punishment scenario and as such, the bills might feel great but they don't really do anything for public safety.  

In fact, there is a built-in incentive for people to perform the very conduct  that legislators are trying to ban.  Why?  Because unlike drivers' other traffic offenses that are shared with insurance companies - and lawful drivers have to purchase insurance - cell phone and texting offenses are not shared and the Legislature has prohibited such communication of these offenses to insurance companies.  These offenses can still affect the privileges of intermediate (under age 18) drivers, but most of the driving public is not incentivized with any reward or punishment.  

If legislators really want to improve public safety AND help most of the driving public and their constituents pay less in insurance premiums, sponsors should strike the bills’ language that prevents employers and insurers from finding out about a person's driving offenses in this area.  

As there have been many comparisons to texting and cell phone offenses with DUI, if the comparisons are accurate (and I'm not arguing one way or the other that they are), it seems fitting that drivers who create risk by texting and/or holding a cell phone to their ears while driving should be readily identifiable to those who insure and employ these same drivers, whether it's a company attempting to measure risk or someone looking for a babysitter to drive their children to soccer practice.  

The safety and economic incentives are simple: if employers can minimize risk on the road by screening those drivers who have a history of these offenses, we will arguably have safer roads if more people are economically incentivized to curb conduct deemed risky or offensive.  

If insurers can identify drivers who create greater risk, then insurers can isolate risk to specific policyholders and policyholders who choose a more prudent way of driving will be economically incentivized to drive with their hands free of wireless communication devices if these drivers know they will pay less for insurance than the person who breaks the law. 

 Perhaps next year the Legislature can address the real issues with texting/cell phone legislation and debate the merits of a clean and meaningful bill.  

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