Selfies, Distracted Driving, and the Virginia Plan

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Everyone knows that it is unlawful to text while driving in North Carolina.  But what’s the legal status of all of the other distracting things people do with their phones?  Is it unlawful to take a selfie while driving? To post the selfie to Instagram? To look at a friend’s driving selfie on Instagram? To read another friend’s Facebook status update? To search the web for the latest weather forecast? FullSizeRender_edited-1

None of these actions is banned by the state law barring texting while driving. See G.S. 20-137.4A. Some may be prohibited by the statute that bars a person from viewing a computer while driving on the theory that using apps on a mobile phone renders the phone a computer. See G.S. 20-136.1. For the most part, however, the answers to the questions posed above are unclear. As a result, these types of behaviors seldom are addressed by law enforcement officers. Moreover, the fact that many of the hand manipulations that drivers perform on their phones may be lawful makes it harder for law enforcement officers to know when violations of existing state laws occur.

The Virginia plan. Legal ambiguities of this sort are not unique to North Carolina. Yesterday, a legislative panel in Virginia approved a bill aimed at clarifying similar questions under its laws. The Virginia bill amends that state’s existing law banning texting while driving to make it unlawful for a driver to “[m]anually select multiple icons or enter multiple letters or text in [a handheld personal communications device].” (Va. House Bill No. 461 (language added to current Va. Code § 46.2-1078.1 is italicized)). It also eliminates the requirement that the entry of icons or letters be done “as a means of communicating with another person.” The bill further amends existing law by making it unlawful for a driver to “[r]ead any information displayed on the device,” substituting the broader italicized language for “email or text message transmitted to the device or stored within.” Finally, the bill eliminates the exception from the ban for vehicles that are stopped but are not lawfully parked. The bill next will be considered by Virginia’s House Transportation Committee.

The numbers. One proponent of the amendments to Virginia law claimed that “[s]even out of 10 drivers text; 33 percent email; 28 percent browse the internet; 17 percent of people take a selfie; 14 percent post on Instagram and Twitter; 12 percent of people make videos; and 11 percent use Snapchat.” Those percentages are significantly higher than the National Highway Traffic Safety Administration’s report that 2.2 percent of drivers in 2014 text-messaged or visibly manipulated their hand-held devices. NHTSA’s report was based on observation of drivers who stopped at intersections controlled by stop signs or stoplights. The 2.2 percent reported by NHTSA was an increase from 2013, in which it estimated that the percentage of drivers text-messaging or visibly manipulating their phones was 1.7 percent. The rate of such activity was by drivers between ages 16 and 24 was higher: 4.8 percent.

Would broader laws make us safer? Regulating mobile phone use by drivers is a bit like regulating the sweepstakes industry. By the time one activity becomes unlawful, there’s another arguably lawful software application that is more appealing anyway. By way of example, NHTSA reports that drivers’ use of hand-held phones decreased from 6.2 percent in 2005 to 4.3 percent in 2014. While fourteen states ban hand-held phone use by drivers, the vast majority do not. I wonder whether the decrease in this activity has as much to do with hands-free in-vehicle technology and the declining use of phones as, well, phones, as it does with governmental regulation.

Plus, as long as vehicles are driven by humans there will be distractions. I remember my mother constantly filing her fingernails while driving me around as a kid. I’ve seen people driving while reading the newspaper (the old-school kind that is actually printed on a piece of paper). Drivers change radio stations and compact discs. They eat food (sometimes with utensils) while driving. I’m personally acquainted with a person who has applied mascara from behind the wheel. And, as regular blog readers know, I have driven on road trips with actual children in the car. Talk about distracting . . .

Yet there is a sense that the pervasiveness of visual and manual communication by electronic device surpasses these kinds of distractions. (NHTSA reports that 14 percent of all fatal distraction-affected crashes in 2013 involved the use of a mobile phone and 8 percent of all people injured in distraction-affected crashes in 2013 were involved in a crash involving mobile phone use.) The notification of a text message, a like, or a chat calls for immediate attention.  And, for many people, these kinds of alerts arrive every few seconds. To view the notification, the driver must look away from the road. To respond, he or she must look away even longer.

Back to the selfie. Not even the Virginia plan would bar a driver from taking a selfie, distracting as that activity may be. It would, however, bar the driver from posting the selfie on a social media if that action required “select[ing] multiple icons.” If North Carolina decides to get into the selfie-regulation business, I sure hope someone calls me. I want to be in the vanguard of codifying that term.

4 comments on “Selfies, Distracted Driving, and the Virginia Plan

  1. I love your last two sentences, Shea. Thanks for volunteering. I have you on speed dial at the office. And I can also text you while I’m driving.

  2. Instead of trying to split hairs to codify and define prohibited actions with every little nuanced change in technology, shouldn’t these actions fall under the purview of “careless and reckless driving”? If an officer sees a driver being careless or reckless with a handheld device, ticket the driver.

  3. How does Riley play into these cases? If Riley requires probable cause for police to search cell phones of arrestees, then can a police officer pull someone over for allegedly texting while driving and search the cell phone for evidence of the violation. I believe that this might be contrary to the spirit of Riley and as such, the law becomes irrelevant if officers cannot search to confirm their suspicions.

    • Great question, Will. As you note, the Supreme Court held in Riley v. California that the search incident to arrest exception does not apply to permit officers to seize and search cell phones incident to arrest. As a practical matter, Riley doesn’t have much impact on violations of the texting ban in G.S. 20-137.4A, which (unless committed by a school bus driver) is an infraction for which a person may not be arrested. Riley doesn’t prevent an officer from looking down at the face of a phone when he or she approaches a vehicle nor does it prohibit an officer from asking for consent to search a phone.

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