The Kickham Comment - Boston Criminal Attorney Blog
Now a few days old, the new Massachusetts Anti-Texting Law, (St. 2010, C. 155, “Safe Driving Law”,) stands out as Exhibit Number One (among many Exhibits) of how the Massachusetts Legislature goes about attempting to “solve” what is clearly a problem in this state: Electronically distracted drivers. There is absolutely zero doubt in my mind as to the seriousness of this problem. Distracted drivers (“distracted” in this post means distracted due to use of cell phones and text devices,) are as dangerous and lethal as drunk drivers. I’ve seen more idiots behind the wheel, thinking that they can actually dial a cell phone or text and still drive safely. Note to such idiots: You’re operating two tons of steel and glass, moving at speeds that can easily kill and maim (a car moving as slow as 10MPH can easily kill someone, never mind 40, 50, and 60MPH.)
Even the shallow minds that occupy the Legislature couldn’t deny the danger presented by this lethal habit — so was their response to craft an effective, balanced measure that would make practical sense in the real world? Of course not – this is the Legislature, where, shall we say, the atom has never been split, and never will be. No, instead they passed this measure – signed into law by Governor Patrick – which actually claims to be able to legitimately outlaw texting – while keeping dialing and talking on a cell phone – the very same devices as used for texting – quite legal. I’ve seen idiocy before, but this law takes the cake. This is about the most unenforceable laws I’ve seen enacted in Massachusetts in a while.
The law – which went into effect September 30, allows police to slap drivers with $100 fines for sending or receiving text messages while behind the wheel – is patently unenforceable. (The penalties are even worse for drivers under age 18.) How in God’s name is a police officer supposed to be able to see so close up to a driver’s hand, to know whether he or she was dialing a phone call or texting a message? The very same devices – a cell phone – do the same thing. An officer may be able to see, from either the side of a road or through a cruiser window, that a driver is using a cell phone keypad, but it is nearly impossible to prove that the driver was not dialing a phone call, but texting. Importantly, a driver doesn’t have to hand over his phone to prove whether he was texting or phoning. (For that, police would need a search warrant – ridiculous to even discuss in such a situation.) So exactly what is an officer or trooper supposed to do once he or she stops a driver who is seen holding and using a cell phone? Answer: Presume the driver was texting, and hit them with a fine. A moron could dodge this law. It’s just ludicrous.
The only applicability to cell phone calls is a provision in the law that bars drivers under the age of 18 from using a cell phone to make a call. This half-way measure has only invited objections from the ACLU of Massachusetts, which worries the law gives cops an excuse for stopping minority drivers who are known to use cell phones a lot – or a pretext for police to stop any motorists police deem suspicious. In my opinion as a Norfolk County Motor Vehicle Violations Attorney, if the Legislature wanted to address the grave problem of distracted driving, they should have applied the prohibitions to all use of hand-held cell phones while operating a motor vehicle – texting or phoning. Period. Of course, legal challenges to such a statute would follow; I’m fully aware of that. My view: Let those challenges come. But at least make the law uniform and sane. This measure is ridiculous, and just as bad, it won’t likely made the roads in Massachusetts much safer at all.