Following up on the topic of distracted driving. This blog featured the topic in December 2018: Texting and other Distracted Driving (December 2018). That focused on the proposals in Senate Bill (SB) 76 and House Bill (HB) 45. Motor vehicle accidents are a major cause of workplace accidents; driving safely is an important workers' compensation subject. The statistic quoted in that post that "92 percent of drivers" have used mobile devices "while in a moving car" is troubling.
In the December post, there were other examples of distracted driving. At least according to one ranking, "cellphone use" was not the most pervasive distraction. The number one distraction listed was "lost in thought," contributing to 62% of the distracted events. Conversely, "cellphone use" was listed in only 12% to 14%. There are a variety of potential distractions on the road. The Legislature elected to address this one.
As often happens, bills in the legislative process change through the course of the session. This year, the Senate altered the language in SB76 various times. One version of that bill included an "informing and educating" period beginning October 1, 2019, through December 31, 2019. During that period, law enforcement would have been able to stop motorists "to issue verbal or written warnings." After December 31, 2019, the actual enforcement was to begin (a warning period).
House Bill 45 was withdrawn prior to introduction, on January 10, 2019. The House began working instead on HB107. That bill was ultimately passed by both chambers, substituted for SB76 on April 25, 2019, and signed by the Governor on May 17, 2019. Much of it it becomes law on July 1, 2019, and that has generated news coverage as well as commentary.
Florida law already provided that:
"A person may not operate a motor vehicle while manually typing or entering multiple letters, numbers, symbols, or other characters into a wireless communications device or while sending or reading data on such a device for the purpose of nonvoice interpersonal communication." Section 316.305(3)(a), Florida Statutes.
Therefore, texting while driving was already illegal in Florida. The change effected by HB107 is largely the change rendering it a "primary offense," meaning that a driver might be stopped specifically for using a device. In prior laws addressing texting and driving, the offense was "secondary," meaning that a citation for texting could be issued if the driver was stopped for some other, "primary," offense such as speeding, running a red light, etc. Some Floridians will remember that mandatory seat belt laws followed a similar path of first being "secondary" and evolving into "primary."
HB107 also includes specific language precluding law enforcement from accessing someone's cell phone ("wireless communications device") without a warrant, from confiscating such a device, or from obtaining consent to a search of a device "through coercion or other improper method." The new law requires police agencies to record and report on the race and ethnicity of any violator cited under this law. All state law enforcement agencies will be required to both maintain that data and to report it to the Governor and Legislature annually.
Florida motorists will continue to see cell phones in driver's hands. Section 316.305(3)(a), Florida Statutes provides:
"a motor vehicle that is stationary is not being operated and is not subject to the prohibition in this paragraph."
That exception is also reiterated in Section 316.306, which is a new section added by this law. This specific portion is not effective until January 1, 2020. This section is specific to "school crossing, school zone, or work zone area as defined in s. 316.003(101)." The stated intent of it is to "improve roadway safety" in these specific areas. This new provision does include a "warning period" allowing officers to issue warnings regarding this section and the use of devices in these "zones" beginning October 1, 2019. This three-month warning period may help educate drivers as to the change.
There are exceptions that allow the use of a "wireless communication device" even in these specific zones. These include
"operator(s) of an emergency vehicle . . . , a law enforcement or fire service professional, . . . emergency medical services professional, Reporting an emergency or criminal or suspicious activity . . .. . messages related to the operation or navigation of the motor vehicle; Safety-related information, including emergency, traffic, or weather alerts," Radio broadcasts, and use in hands-free or hands-free in voice-operated mode."
Those exceptions are essentially the same as the exceptions that already existed in Section 316.305(3)(a) regarding the use of such devices outside of these specific "zones" addressed in the new section.
The distinction between the general prohibition and the new addition is in the penalties. A driver that violates Section 316.205 "commits a noncriminal traffic infraction, punishable as a nonmoving violation as provided in chapter 318." A second violation "within 5 years" is "punishable as a moving violation as provided in chapter 318." Section 316.205(4). However, a violation of the "zones" prohibition, Section 316.306, is "a noncriminal traffic infraction, punishable as a moving violation." The new section says that the driver "shall have 3 points assessed against his or her driver license" for violation. The penalty for the "zone" violation is stricter.
However, there are two specific methods for a driver to avoid the Section 316.306 penalties. First, for a "first offense," the driver instead "may elect to participate in a wireless communications device driving safety program." This would waive the assessment of point, and a court clerk would be allowed to waive "associated costs." The law also empowers a "clerk of the court" to "dismiss a case and assess court costs" for a first offense if the driver "shows the clerk proof of purchase of equipment that enables" the driver to use "his or her personal wireless communications device . . . in a hands-free manner." There is a definite emphasis here on education and transitioning to "hands-free."
With some of the law changes taking effect July 1, some in law enforcement have expressed doubts as to the efficacy of the new law. Fox13 Tampa Bay recently reported that "police officers say enforcement is going to be a challenge." The focus of their skepticism is their perception of a "loophole" in the law. A memorandum was circulated to St. Petersburg officers reminding them that drivers are allowed to use their devices for specified purposes even while driving. There is some conjecture that any driver will claim one of these exceptions if stopped for the use of a device while driving.
The Fox13 article quotes a spokesperson of the St. Petersburg police. She says that for "an officer to know for sure" what a driver is using a device for, "he (or she) must inspect your phone." The spokesperson notes, as discussed above, that the driver "can decline to give it to him (or her), under the law." It is the perception of these listed "approved uses" that is driving the skepticism regarding enforcement.
Thus, the significant amendments to Section 316.305 regard the change from "secondary" to "primary." Whether that will enhance enforcement or not remains to be seen. The creation of Section 316.306, and the enhanced penalties, may perhaps make drivers think twice when in school zones, crossings, and work zones. Notably, according to Brightfleet, "distracted driving has overcome impaired driving as a major cause of road injuries and fatalities." The fact that it is an issue is thus clear. With the passage of HB107, and again as implementation nears, there has been significant coverage of distracted driving both in news and commentary.
Perhaps in that raising of awareness alone, there is value in this new law. Possibly all of the coverage has discouraged distracted driving. With the implementation of Section 316.306 delayed until next January, perhaps there will similarly be significant news coverage of distracted driving this fall and winter. To the extent the subject can be reiterated, revisited, and stressed, there is a likely benefit to all motorists. We can all use that periodic reminder to recognize and avoid distractions.
Some will take to heart the discussion above and particularly focus on the conclusion that there are many potential distractions while driving. Can we all learn from the statistics concerning the seemingly innocuous "lost in thought?" Will employers take to heart the legislative focus? Might parents as well? Any of us might put aside distractions while we drive, and encourage others to do likewise. And, if we know someone is driving at a particular time, we might defer making a non-emergency call or sending a text to that person.
As Flannery O'Conner wrote: "The life you save may be your own." It is definitely worth skipping that call, text, or news flash until you can pull over and take a break.
