Distracted Driving – Lessons in Formulating a Bill

I have been tracking many issues while the legislature is not in session. I have reported on a number of them in my monthly columns in The Other Paper (see previous posts of these columns). I have also been working on a couple of bills that I intend to introduce in the coming session. One involves strengthening Vermont’s distracted driving laws. In this post, I will discuss this bill and the issue of distracted driving to give an overview of how a bill is generated. As I explain, producing a bill involves recognition of community interest in an issue, research into the problem and potential solutions, consultation with experts, and judgment as to what might gain traction in the legislature. I intend to write further about the progress of this issue and bill during the upcoming session.

In August, I heard from a constituent regarding a number of concerns related to traffic safety, including that the current distracted driving laws in Vermont prohibiting the use of handheld devices while driving are not effective. He drives a motorcycle and is vigilant in watching whether other drivers are paying attention. Too often, they are not. And often that inattentiveness is due to the use of mobile devices. He suggested to me that the legislature should significantly increase the penalties for violations to make the law effective as a deterrent.

I started to look into the issue and contacted the Vermont Office of Legislative Counsel for assistance in evaluating the problem and determining potential fixes to include in a bill. This Office provides the General Assembly with legal advice and bill-drafting services. In early September, an attorney was assigned to assist me.

To get me further grounded in the issue, the Legislative Counsel attorney explained the various laws that the State already has on the books.   Over the past few years as smartphones have become more prevalent, the legislature has enacted a number of laws and amendments to those laws to address the dangers that the use of such devices cause on our roads.

Under these laws, anyone who is under 18 years old is banned from using any portable device in any manner while operating a motor vehicle. 23 V.S.A. § 1095a. For a violation of this provision an individual is subject to up to a $1,000 fine and 2 points on his or her license. He or she will receive a 90-day recall of his or her license after 6 points are accumulated. Note that a recall is different than a license suspension. At the end of a recall, an individual does not have to pay to get a license reissued, as one does after a suspension. Further, a recall is not carried on one’s record.

Individuals over 18 years of age operating a motor vehicle may use a portable electronic device “hands free,” but may not otherwise use such a device. 23 V.S.A. § 1095b. The penalty for a first offense of this provision is a $100 to $200 fine. If the offense occurred in a work zone, the driver is subject to receiving 2 points on his or her driving record. A second offense brings a $250 to $500 fine and, if in a work zone, 5 points. No points are imposed if the violation occurs outside a work zone. An adult operator who accumulates 10 points or more within a 2-year period is subject to a 10-day suspension of his or her license.

All drivers are banned from texting while operating a motor vehicle.   23 V.S.A. § 1099. If a driver violates this provision, he or she is subject to a maximum fine of $200 for the first offense and $500 for a second offense that occurs within two years.  In addition, the driver is subject to receiving 5 points on his or her driving record.  (There are separate restrictions for those who are commercial operators of motor vehicles.)

After this explanation, the legislative counsel and I discussed the perceived problem and possible solutions. We agreed that, as a next step, she would research the different means to improve the efficacy of the laws. She later provided me her findings, sharing abstracts from studies of the deterrent effect of various penalties on traffic violations. The main lesson I took from the research was that increasing the risk of detection and punishment for violators of the distracted driving laws would be more effective than simply increasing the penalty for violations.

The legislative counsel also provided statistics from the Vermont State Police related to ticketing for violation of these laws. The laws have not been in effect for very long, so the information was somewhat limited. Nevertheless, the data was sufficient to show an increase in ticketing for offenses involving the use of portable electronic devices, but no clear upward trend in texting tickets. The State Police contact noted, however, that no funds were available for measuring the incidence of cell phone use and texting while driving so it is difficult to make any accurate statements about the effect of the laws on driver behavior.

But I still felt that the effectiveness of our distracted driving laws was a problem. I agreed with my constituent that seeing people inappropriately using cell phones while driving is a common occurrence. A too-frequent occurrence.

On October 26, 2015, I attended a conference sponsored by the Vermont Highway Safety Alliance in Jay Peak. Among other things, I learned that statistics show that there has been a declining trend in major motor vehicle crashes in Vermont since 2006. But I also learned that crashes related to distracted driving are of substantial concern among traffic safety experts given the increasing use of portable devices in motor vehicles and of interactive information systems in most new cars. I spoke with police officers who told me that they remain concerned with distracted driving. They also indicated that the primary problem with enforcing the current laws is the difficulty in detecting violations. At the conference, I also established a contact with the Director of State Relations for AAA, which has been studying the impacts of distracted driving and follows legislative and regulatory proposals on traffic safety issues. (For further information, go to the recent AAA report, Measuring Cognitive Distractions).

Soon after the conference, the legislative counsel sent me an initial draft bill that focused on increasing the penalties for distracted driving, including doubling of fines. During this time, I had also been in contact with AAA and found out that Vermont’s penalties are actually a bit above the national average and that doubling fines would make them among the most severe in the country. I also learned that the doubled fines would be higher than just about any other fine that a passenger vehicle operator is likely to face. It became clear that perhaps other fines could be raised too, but if not, it was a fair question whether the idea of doubling the fines was appropriate.

On reflection, it seemed unlikely that I would be able to convince the legislature to increase all traffic fines. In any event, I was learning that simply increasing penalties was not likely to address the crux of the problem with the laws’ effectiveness. It was detection and enforcement that needed to be addressed.

I met with the legislative counsel in early November to hash out different ideas. We eventually settled on an approach that would be less reliant on an increase in penalties. Still, certain penalties would be strengthened. I decided to include in the draft bill enhanced penalties for violations in school zones similar to those that already exist in the law for violations in construction zones; introduction of points for a second violation outside such zones; and required automatic recall of licenses of junior operators for 30 days after one offense, 60 days for a second offense, and 90 days for a third offense. I also included in the draft bill a provision to expand the use of a current DUI Enforcement Special Fund to include efforts to address distracted driving.

The main thrust of the bill, however, is to improve law enforcement’s effectiveness at detecting violations. To accomplish this, the bill includes an “implied consent” provision that would allow an enforcement officer to search an operator’s portable electronic device for the limited purpose of enabling the officer to determine a violation of the distracted driving law, if the officer has reasonable grounds to believe that a violation occurred. To our knowledge, this would be a unique provision in a state’s distracted driving law. But it makes sense. When an individual is granted the privilege to drive on public roads, he or she has given implied consent to certain intrusions to ensure the safety of the roads. For instance, an officer on suspicion can ask a driver to undertake a breathalyzer test. The driver can refuse, but there are consequences. Similarly, it makes sense that an officer on suspicion can ask to see a portable device to confirm whether a driver has been inappropriately using that device. The driver can refuse but, again, such refusal would come with consequences.

After being satisfied with the draft bill, I ran it by other legislators who had expressed interest in the issue or related issues of road safety, my contact at AAA, and a representative of the Department of State’s Attorneys and Sheriffs, whom I had also consulted earlier about my work on the bill. I am still waiting to hear back from these contacts, although the State’s Attorneys representative did not have an issue with the concepts in the bill. Nevertheless, it is still possible that before I finalize the bill, I will further modify it based on input. Once the bill is introduced, I will provide a link to it on this website.

My next step will be to sign up cosponsors for the bill, talk to legislators on the House Transportation Committee that would initially take the bill up, and let interested organizations such as bicycle safety groups know that it is being introduced so they may push for its consideration. I am hopeful that this initiative will succeed in the upcoming session. I will report its progress in future posts.