News From Terre Haute, Indiana

Indiana Legislature

June 19, 2011

Getn tuf on txting: Law banning text and email while driving takes effect July 1

TERRE HAUTE — If you’re driving in slow traffic and running late to a meeting, after June 30, you’d better think again before sending a text message to let folks know you’re on the way.

It will be against the law to text or email while driving in Indiana.

Under the latest change to the state’s distracted driving law, which goes into effect July 1, it is unlawful to type, send or read a text message or email while driving. The class-C infraction is punishable by up to a $500 fine.

The current law prohibits drivers younger than age 18 from using cell phones, text messaging devices or other wireless communication apparatuses while behind the wheel.

Enforcement of the changing law is only one issue that has some folks wondering if a texting ban will actually make Indiana roads safer.

Police officials are acknowledging that it can be tricky to catch someone in the act of texting, since most cell phones can be used for a variety of functions in addition to text or email messaging.

“We’re not gonna send out guys specifically to watch for that,” Terre Haute Police Chief John Plasse said of the new law, “but if we see people obviously doing that, then we can pull them over.”

Plasse said he has seen drivers with both hands resting on the steering wheel while their thumbs are quickly typing a message into a phone. That is the obvious type of violation that officers will be looking for, he said.

“It’s going to be difficult to enforce,” he acknowledged, especially if a driver denies texting or emailing, since the law prohibits an officer from taking a phone to see what the suspected texter was doing.

A digest of  House Bill 1129 states that a police officer is prohibited “from confiscating a telecommunications device for the purpose of determining compliance, or confiscating a telecommunications device and retaining it as evidence pending trial for a violation.”

That protection makes sense, said Sgt. Joe Watts of the Indiana State Police, since so many people these days use their cell phone as an appointment calendar and to record important phone numbers and personal information for daily and business use.

“These phones are such a vital part of many people’s lives, that taking someone’s phone would be a hindrance to how they conduct their business or life,” Watts said.

Steve Luce, executive director of the Indiana Sheriff’s Association, said the new texting ban was a discussion topic during recent trainings for sheriffs and police chiefs conducted at Bloomington and Kokomo.

Enforcement will be up to each officer’s discretion, Luce said, noting that texting while driving is becoming a more primary reason for action.

Officers will have to “view them texting to have probable cause to pull someone over,” Luce said of the law’s interpretation.

It will be a learning curve for everyone, he said, noting that many people use their cell phone as their clock or watch, so just seeing someone look at a phone will not be cause enough to pull the driver over.

Luce also noted that police officers are not exempt. Each department should have an internal policy on texting and cell phone use. He noted that many sheriff departments around the state are making the move to hands-free communication, and most cell phones now come with a hands-free option.

“Our position is that every year, we’re trying to make the roads safer, and hopefully, people will set themselves up in their vehicles with Bluetooth and hands-free devices to be safer,” Luce said, noting that he made the switch to hands-free last year and he found it allowed him to stay more alert while driving.

ISP’s Watts notes that the law states the violation must occur in a “moving” vehicle, so if a motorist is stopped at a red light, a railroad crossing, or pulled off on the side of the road, then it is OK to text or email. But once the vehicle is in motion, texting and emailing must stop.

“We will enforce it like any other law on the books,” Watts said. “If we see someone texting, we will make a traffic stop and decide whether to issue a citation or a warning.”

In Vigo County, traffic infractions go to Terre Haute City Court, where a class-C infraction carries a $120 fine.

Vigo County Prosecutor Terry Modesitt said his office has discussed the new law, and will consider it the same as other traffic infractions by making it part of the infraction deferral program for eligible drivers.

That means that a driver who receives a ticket for texting or emailing while driving in Vigo County, if it is the person’s first offense, could be eligible for the infraction deferral program. An individual must apply to the program, and if accepted, the motorist will pay an additional penalty along with the ticket, while agreeing not to receive another traffic citation for six months. If the person successfully completes the deferral period as agreed, the ticket is dismissed, and no conviction will appear on the person’s driving record.

Modesitt said he expects that there could be quite a few tickets issued for driving while texting once the law goes into effect.

“It is very prevalent right now, but it’s going to have to stop,” Modesitt said.

Indiana’s law does allow hands-free or voice operated technology to transmit a text message or an email. It also exempts amateur radio equipment operated by a licensed amateur radio operated, as well as communications systems installed in commercial vehicles weighing more than 10,000 pounds.

A review of cell phone and texting restrictions in other states shows a variety of tweaks to fit whatever need legislators thought applicable.

For instance, 15 states also prohibit school bus drivers from using cell phones while driving. Twenty-seven states specifically mention restrictions for teenage drivers or minors. Eleven states have no limits on cell phone use, but some of those, such as New Mexico, do have local ordinances restricting texting or cell phone use.

New York state restricts drivers to hands-free devices for cell phone calls, while text messaging and related Internet use are outlawed. And, some cities and counties in New York have separate bans on text messaging by drivers. In Michigan, text messaging is outlawed for all drivers, and in Detroit, drivers must use hands-free devices even for cell phone calls.

While many Hoosiers agree it is dangerous to text while driving, and that something needed to be done to protect the motoring public from drivers distracted by texting or emailing, the wording of Indiana’s law may hint that common sense took a wrong turn on the road to safer travel.

After all, if cell phones are the source of the texting and emailing problem, why not just ban all cell phone use, including phone conversations?

House Bill 1129 originally sought to ban phone calling and text messaging on handheld electronic devices. However, hands-free texting was OK. It was approved in an 85-11 vote by the House in January, but was amended in the Senate in March to include a ban on all handheld cell phone use. The full Senate vote was 29-20.

That Senate addition was removed by the House in April, however, and the bill prohibiting only texting and emailing was approved by the House in an 83-10 vote. The Senate approved the bill 26-24. It was signed into law by Gov. Mitch Daniels on May 10 to take effect July 1.

With passage, Indiana became the 32nd state to ban texting while behind the wheel.

Meanwhile during this spring’s legislative session, the Senate had its own version of a texting ban bill that also restricted the use of cell phones to hands-free operation. That bill passed in the Senate, but died in the House.

Another bill in the House did not seek a ban on cell phone use or texting while driving, but set an optional  prison penalty for cell phone-using drivers who injure or kill someone. That bill died in committee.

“I don’t think anyone disagrees that texting while driving is a bad thing,” said Joel Schumm, professor at Indiana University School of Law, about the “noble and wonderful” intent of the new law to reduce distracted driving. “But the wording of this law is open to challenges.”

Schumm pointed out that drivers can still play video games, or read a book, or knit a sweater, while navigating Indiana’s roadways. So, if you are behind the wheel playing “Angry Birds” on your iPhone, you can legally peck away, he said.

“I think it started broader,” Schumm said of the law as it was originally written to eliminate all use of cell phones. “The version now is illogical. You can play Angry Birds or be Googling or reading a book on your Kindle, but you can’t send or receive text messages or email.”

The biggest problem that Schumm sees for the law, though, is the legal challenges that will come for arrests that came about as a result of a texting citation.

“I think there will be challenges if police pull you over on the pretext of texting, and the officer sees drugs or guns in the car,” he said, explaining that a defense attorney will likely challenge how the arrest came about.

Schumm predicts that in future legislative sessions, Hoosier lawmakers will likely consider broadening the law to say that drivers can’t use cell phones at all.

Vigo County Sheriff Greg Ewing said he agrees that, just like with the seatbelt use law enacted several years ago, some additional legislative tweaks are likely in the future before both police officers and the public become comfortable with this law.

Lisa Trigg can be reached at (812) 231-4254 or lisa.trigg@tribstar.com.

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