Traffic Safety Advocates Urge New Jersey Lawmakers to Treat Cellphones Like Open Containers of Alcohol

It’s safe to say that the number of drivers arrested to date for operating a motor vehicle while under the influence of alcohol or impaired from the use or abuse of prescription drugs is much greater than those who have been ticketed for using a non-hands-free cellphone while driving. While safety advocates continue to debate the relative dangers of DWI versus distracted driving, one thing is for certain, the days of unfetter cellphone or smartphone use in a motor vehicle are likely more limited than many people might imagine.

More than a year ago we commented on the increasing trend of legislating prohibitions on the use of cellphones while driving because of the obvious dangers of being distracted during the operation of a motor vehicle. As New Jersey DWI defense attorneys, my colleagues and I have years of experience defending individuals who have been accused of driving under the influence of alcohol, doctor-prescribed medication, or an illicit or controlled substance (CDS). Many of our clients believe that that they were not impaired, while some feel they were improperly arrested.

Now, after years of defending drivers who have been arrested and charged with alcohol or drug impairment, the increase in attention on the frequency of cellphones and texting in cars has resulted in a whole new genre of “impaired” driving; we’ve asked in the past whether “phoning-while-driving” could become as costly an exercise (from the standpoint of traffic-related penalties) as being convicted of DWI or drug DUI.

Some readers might laugh, but the writing may already be on the wall. Of course, as motorists ourselves, we fully understand the potential downside to distracted driving. Having represented hundreds of individuals over the years, my law firm knows very well the law as it pertains to drunk driving and other intoxicant-related traffic offenses. Now, as we are fully immersed in a society addicted to their cellphones and smartphones, could the issue of distracted driving eclipse that of DWI-DUI? Only time will tell.

According to an editorial in the Star-Ledger this past summer, the idea that cellphone use should be treated the same as drunken driving was floated. Based on the author’s statements, the possibility that a police officer might in the future ask for your license, registration AND your cellphone when conducting a traffic stop may be on some legislators’ minds.

As reported in the editorial, a bill introduced in the state legislature by an Ocean County state senator calls for police to ask for a driver’s cellphone, sans subpoena or probable cause, whenever they pull a motorist over for a traffic violation. According to reports, the bill only requires that an officer have “reasonable grounds” to request the cell- or smartphone. This is a much lower standard than probably cause.

In the wake of the introduction of this bill, the American Civil Liberties Union (ACLU) jumped at the chance to state that the any law growing out of such legislation would more than likely face strong constitutional challenges as regards illegal search. The argument from detractors comes in the form of concerns that today’s cellphones are more than just communication devices, they house a variety of personal information, from photos and personal messages to banking information and personal contact information.

While possibly well-intended, the bill’s author is also a former prosecutor who apparently wants to give law enforcement as many tools as possible, according to the editorial; however, it could also be said that the bill doesn’t really address the true problem. Based on the editorial, the largest failure of this piece of legislation is that it is not a good strategy to curb distracted driving. In addition to concerns for civil liberties, the bill would also raise fines for texting while driving to $300.

The author of the editorial went so far as to suggest a straight ban on the use of all phones behind the wheel, even those that are hands-free. By banishing phones from the driver’s seat, the author contends, then police can enforce the ban and penalties — on par with those for DWI — could be levied on offenders. In the end, if cellphone use and texting is as dangerous or more than drunk driving, then punishing those activities the same way the state punishes drunken driving may be the only logical choice. Again, only time will tell.

Cell-phone search bill is a bad idea. Treat phones like DWI, instead;; June 12, 2013

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