‘Crackberries’ and the Bumpy Road to Highway Safety in New York

December 15, 2011

An article in today’s New York Times discusses recent findings by the National Transportation Safety Board (NTSB) on the dangers inherent in cell phone use by drivers. According to the article, these findings reflect a growing consensus: cell phone use including talking, texting, reading emails, playing Angry Birds, is not only dangerous, it’s compulsive - an addiction. In that article we read for the first time that smart phones are sometimes referred to as ‘crackberries’.

Having in mind, no doubt, the enormous success of America’s 40-year war on drugs, the NTSB has recommended a similar war against in-transit connectivity: banning the use of all electronic devices while driving.

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Banning cell phone use entirely is certainly further than New York has gone, although the state has imposed some strict limitations on it, as we’ll see below.

For instance, texting while driving is forbidden by Vehicle and Traffic Law Section 1225-d. In fact, texting isn’t all that’s forbidden under this statute, which states that “no person shall operate a motor vehicle while using any portable electronic device while such vehicle is in motion.” ‘Using’ includes “holding a portable electronic device while viewing, taking or transmitting images, playing games, or composing, sending, reading, viewing, accessing, browsing, transmitting, saving or retrieving e-mail, text messages, or other electronic data.” A violation carries two points.

Using a cell phone while driving is also forbidden, as a general rule. Vehicle and Traffic Law Section 1225-c reads: “no person shall operate a motor vehicle upon a public highway while using a mobile telephone to engage in a call while such vehicle is in motion.” And while it is legal to fan yourself with your phone while driving, or to use it as a baton to keep time with any music you might be listening to on your travels, the legislature has found a way to discourage that as well. According to Section 1225-c,

An operator of a motor vehicle who holds a mobile telephone to, or in the immediate proximity of his or her ear while such vehicle is in motion is presumed to be engaging in a call within the meaning of this section.

What is ‘immediate proximity’?

‘Immediate proximity’ shall mean that distance as permits the operator of a mobile telephone to hear telecommunications transmitted over such mobile telephone, but shall not require physical contact with such operator’s ear.

So be warned - if you’re waving a phone around anywhere near your head, you’re liable to get a ticket. Since February 16, 2011, this has been a two-point violation.

There are exceptions to the general rule, however: emergency calls are allowed, as is “the use of a hands-free mobile telephone.” In case you’re wondering, a ‘Hands-free mobile telephone’, under the statute,

shall mean a mobile telephone that has an internal feature or function, or that is equipped with an attachment or addition, whether or not permanently part of such mobile telephone, by which a user engages in a call without the use of either hand….

But how do you make a call without using your hands? How do you pick up a call, ditto? The average chin is too large to press a cell phone button. Don’t worry, the legislature’s got you covered. ‘Hands free’ is ‘hands free’ “whether or not the use of either hand is necessary to activate, deactivate or initiate a function of such telephone.”

The bottom line is that the current state of New York’s law seems to us to be sensible and proper; it goes about as far as it’s reasonable to go, and it very much remains to be seen whether a blanket ban like that proposed by the NTSB would make the world much safer.

An insurers’ group has already said that cell phone bans don’t reduce the incidence of accidents. Furthermore, no law appears to cover the application of makeup (if accomplished without a portable electronic device) or driving down the highway with an actual newspaper spread out across the steering wheel, both of which behaviors we’ve seen with our own eyes. Nor does it cover playing a game of magnetic chess on the between-the-seats console (reliable sources tell us this happens). And it will never (we predict) be able to prevent drivers from waving their arms in the course of vehement conversations with passengers; turning to look those passengers in the eye while making a point; or brooding at the wheel about their personal problems.

Drivers routinely ignore laws that are already on the books (we’re looking right at you, reader); states won’t - and can’t - outlaw equally dangerous behavior, including ‘wool-gathering’ by people with personal problems; and creating stiffer laws that people won’t - and can’t - follow just won’t help anything.

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