Distracted Driving Redux

In a December post, I described the process I undertook to formulate a bill that addressed the issue of distracted driving. This bill, H.527, was introduced on January 8th. As I previously explained, this bill had a unique component: an “implied consent” provision. Under this provision, if a law enforcement officer had reasonable grounds to believe that there had been a violation of the distracted driving law, he could search an operator’s portable electronic device for the limited purpose of enabling him to determine if a violation had occurred.

This provision generated significant attention. Within an hour of the bill’s introduction, I received the first of numerous emails, many expressing concern regarding the impact of the implied consent provision on privacy interests. People understandably did not want law enforcement rummaging through their smartphones.

When formulating the bill, I had understood that this would be an issue that would have to be addressed. As I explained to those concerned about privacy, I included the implied consent provision in the draft bill to get the discussion going on this potential enforcement tool.  In my research, including discussions with law enforcement, I had found that detection and enforcement are the greatest barriers to implementing the current laws.  The implied consent provision was an attempt to address that issue.  Moreover, I had passed this provision by Legislative Counsel, the attorneys who help legislators draft bills, and the Executive Director of the Department of State’s Attorneys and Sheriffs, and I had understood from them that the provision was worthy of consideration.

I knew that the provision raised privacy concerns, but felt that it should at least be explored through the deliberative process of the Judiciary Committee.  It was my belief that, if the concept of implied consent could not be implemented without unduly impeding reasonable expectations of privacy, it would not be adopted. Indeed, I would not have been in favor of pushing forward with this portion of the bill if we could not thread the needle between the need for new enforcement tools and the protection of privacy interests.  Still, it was appropriate to see if there was a way that that needle could be threaded.

The controversy over the bill also sparked press interest. A number of articles were written and news segments broadcast about the bill, bringing additional attention to the issue of distracted driving and the proposal’s privacy implications.  Burlington Free Press; WCAX; Fox 44.

The attention was not all negative. Many individuals applauded my efforts at addressing this continuing risk to the safety of our highways, even if they had concerns regarding the proposed implied consent provision. Many also suggested other ideas for addressing the problem. This was positive. I received more input and ideas in the two weeks following the introduction of the bill than I had in the previous five months of exploring the issue.

The Judiciary Committee decided to take up the bill on January 19th and our Committee chair made me responsible for conducting the hearing. I arranged for testimony from various law enforcement representatives, a policy authority from AAA, public safety officials, and a representative from the ACLU.

On the morning before the hearing, however, the attorney from the Legislative Counsel brought to my attention a case, Bernard v. Minnesota, that the U.S. Supreme Court had recently agreed to consider. That case, though involving DUI laws, would squarely put the constitutionality of implied consent provisions before the Court. After discussing the implications of the Supreme Court’s action, we decided that any consideration of the implied consent provision in H.527 should await the ruling in Bernard. The opinion will either ban use of such a concept or provide guidance on how such a concept may be appropriately used. Because the Supreme Court will not decide the case in time for the legislature to take up the issue this session, we decided to table this aspect of the bill. Later, during the hearing on H.527, the Committee agreed.

Nevertheless, we took testimony from the witnesses regarding the issue of distracted driving and the other provisions of the bill that do not involve the implied consent provision. We also discussed some of the other ideas for addressing the issue that had been generated after H.527 had been introduced. The press reported on the deliberations and the demise of the implied consent provision.  Burlington Free Press.

At this point, the bill is being modified based on the testimony and the decision to table the implied consent provision. The Committee may still take action on certain provisions such as strengthening certain penalties for inappropriate use of portable electronic devices and providing additional resources for education and enforcement. There is more we can do to help reduce the incidence of distracted driving.

I have learned a number of lessons from my experience with this bill. I understood that the implied consent provision would be controversial, but did not appreciate the amount of attention the privacy issue would generate. But, I have learned that not all attention is bad. It focused the community on the fact that the state has not resolved this highway safety issue. We heard from numerous witnesses that distracted driving is the top concern in Vermont for highway safety, equivalent to the problem of driving while impaired by alcohol. We also generated additional ideas for addressing the problem.

I will continue to pursue solutions to this issue along with the many other concerns that the Judiciary Committee and the Legislature face.

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First Weeks on the House Judiciary Committee

In the first three weeks of the legislative session, the Judiciary Committee has taken to the highways. We have been working on a number of bills related to the safety of Vermont’s roads and to helping Vermonters retain or regain their driving privileges so they can be productive members of their communities.

H.560, which both the Transportation Committee and Judiciary Committee are considering, would strengthen a number of highway safety laws. One of the primary provisions of this lengthy bill would expand the use of ignition interlock devices, which are breathalyzers for an individual’s vehicle. Since 2011, the use of interlock devices has prevented 6000 incidents of driving while impaired. Current law, however, contains certain disincentives to the device’s broader use. The bill would remove these disincentives so that more individuals would drive with a Restricted Driver’s License, using an interlock device to ensure sober driving, rather than facing a license suspension.

In addition, H.560 would provide that any driver who is in a crash resulting in serious bodily injury or fatality will be deemed to have given implied consent to a blood test to determine if the individual was driving while impaired. This provision is likely to suffer the same fate as the implied consent provision in H.527, a bill that includes such a provision to assist in the enforcement of Vermont’s laws banning texting and the use of handhelds while driving.  The U.S. Supreme Court recently granted certiorari in Bernard v. Minnesota, which will likely address the constitutionality of implied consent provisions such as those in H.527 and H.560. Upon learning of this while taking up H.527, the Committee decided to table consideration of the implied consent concept, although other aspects of the distracted driving bill, including some strengthening of penalties, should receive further consideration.

The Committee has also been examining the issue of driving with a suspended license. License suspension contributes to poverty in Vermont. Losing one’s license undermines the ability to access jobs, housing, and resources, particularly in rural areas. Sixty percent of suspended Vermont driver’s licenses are suspended for failure to pay judgments on traffic violations. Presumably, the legislature intended to encourage payment of fines with laws that suspend driver’s licenses for failure to pay. This intent clearly has not been fulfilled, as there are currently about 34,000 license suspensions due to failure to pay traffic tickets. These suspensions reflect a driver’s inability to pay rather than whether that driver can safely operate a vehicle on our public roads.

We are addressing this situation in H.571, which would cut traffic fines for low-income Vermonters in half; reduce the duration of suspensions and eliminate indefinite suspensions for conduct that does not relate to unsafe driving; limit the use of license suspensions for offenses unrelated to driving; and eliminate license reinstatement fees. So that these changes to the law are revenue neutral, the bill would add a surcharge to all traffic tickets. In any event, enactment of these provisions should reduce costs to law enforcement as well as to courts. Most importantly, however, the bill would reduce the number of drivers who have suspended licenses. It would allow individuals whose offense is unrelated to highway safety to retain their driving privileges, ability to earn a living, and opportunity to contribute to the economy.

Judiciary has also been reviewing metrics on state court performance relative to population-level outcomes. We have heard testimony from the court administrator related to caseload, throughput, and other statistics that show how the courts are doing in providing Vermonters access to justice. In short, the court system is currently challenged by the collateral consequences associated with opiate addiction, primarily in the Superior Court family division. The recent appointment of four additional judges and the implementation of a new case management system should alleviate these challenges.

The courts, and the Judiciary Committee that oversees the judicial system, sit at the end of the pipeline, dealing with the consequences of societal problems. The Secretary of Education provided an enlightening presentation to the Committee about how our schools are trying to deal with those problems early, so that the courts do not have to address them later. She explained how the State is working to reduce the incidence of suspensions and expulsions from school, which, if unaddressed, can become a pipeline to prison. Investment in initiatives such as early education and the use of restorative justice in schools can reduce the number of individuals entering this pipeline and reduce the costs of the court system.

Pricing Carbon

During this coming session, one of the issues that I will follow closely is the legislature’s actions addressing climate change. Last session, along with a number of other representatives, I cosponsored H.412, a bill that would establish a carbon pollution tax. You can review my description of this bill in my End of Session Report, which I posted here on June 10, 2015. Herein, I describe the economics behind putting a price on carbon emissions.

Economists agree that putting a price on carbon is the ideal way to limit the greenhouse-gas emissions that cause climate change. When people engage in activities that release carbon, they impose a cost on others. For example, when someone drives a car, it burns gasoline, contributing to global warming and imposing costs on the public. That societal cost is not built into the price of gasoline, so the driver does not take it into consideration when starting up his or her car. A price on carbon would add the missing cost to the price of gas. The higher price, reflecting the societal costs, would give people an incentive to drive less and thus emit less carbon.

There are two primary methods for the government to establish a price for carbon. First, it can establish what is called a cap and trade system. The government can set a maximum level of acceptable carbon emissions and then issue tradable permits for quantities of carbon emissions. This allows the market for such permits to determine the price of carbon. Such a system has been used effectively in another context. In the 1990s, the federal government successfully used a cap and trade system to reduce emissions of sulphur dioxide from coal-fired power plants, thus reducing the incidence and impact of acid rain.

Also, in 2008, Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New York, Rhode Island, and Vermont implemented a cap and trade system called the Regional Greenhouse Gas Initiative. This initiative is intended to reduce the amount of carbon allowed from electricity producers, who are required to buy a credit for every metric ton of carbon they emit. In 2014, the Initiative’s cap was 91 million tons, with that cap declining by 2.5 percent each year from 2015 to 2020. It is too early to know how effective this initiative will be.

As an alternative to a cap and trade system, the government can establish a price through a tax on carbon. British Columbia, Canada has priced carbon through imposing a tax and carbon emissions have gone down with no discernible harm to the province’s economy.

H.412 would implement a system similar to that found in British Columbia. It would set a price on fuels that release carbon to more closely reflect the costs of carbon emissions to society. That would, in turn, provide incentive for consumers to reduce their use of carbon-emitting fuels. The revenues that are collected from the tax would be used to reduce other taxes and to fund energy efficiency efforts.

It is not clear whether this bill will advance out of the House Committee on Natural Resources this session. I am participating with the legislature’s climate caucus to determine how we may be able to advance this or other bills that will help address the causes of climate change. As always, I would appreciate any input on this or other issues in the legislature.