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 19^th 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.