Driving While Calling -- What's the Legal Limit?

The use of cell phones while driving continues to be a hot item on legislative agendas.

If you have been in a car lately, you know that the days when every driver had two hands on the wheel and two eyes on the road are long gone. Now it's common to see a driver with a phone crooked between shoulder and ear, sipping a latte, reading a newspaper, applying makeup, shaving, eating or turning to talk to the passenger in the back seat. For some people, two hands on the wheel have been replaced with the pinky finger and knee.

Although many distractions can make driving perilous, it's cellular telephones and other mobile telecommunications devices in motor vehicles that have grabbed the attention of legislators and made headlines this year. Lawmakers in 43 states, the District of Columbia and Puerto Rico proposed more than 130 bills regarding cell phones and driving in 2001, compared with 27 states that considered legislation last year and 15 states the year before.

Unlike previous years when cell phone bills were dead on arrival, this year some legislation passed. New York in June became the first state in the nation to prohibit the use of hand-held mobile phones while driving. Massachusetts now prohibits drivers from using cell phones while operating a school bus. Legislators in Louisiana, New Jersey and Virginia approved resolutions to study cell phone involvement in crashes. New Jersey also voted to prohibit drivers with learner's permits from using cell phones. Illinois legislators revised headset restrictions to allow drivers to use one-sided earpieces with cell phones. Oklahoma and Oregon forbade local jurisdictions from enacting cell phone restrictions. A hands-free bill in Rhode Island passed both houses, but was vetoed by the governor until more information can be collected.

Legislative activity was not restricted to the states. In both houses of congress, lawmakers proposed bills to restrict cell phone use in cars. At the local level, several counties and municipalities, including Santa Fe, N.M., and Nassau, Westchester and Suffolk counties in New York, passed ordinances to prohibit hand-held cell phones in cars. In all, 13 U.S communities now limit cell phones in the car, and more towns, cities and counties are considering similar proposals.

KEEPING UP TO SPEED WITH TECHNOLOGY

The rising interest in cell phone legislation corresponds with the blistering growth of technology on the road. More than 119 million Americans currently subscribe to mobile telephone services, according to the Cellular Telecommunication Industry Association (CTIA), up from 60 million subscribers just three years ago. The National Highway Traffic Safety Administration (NHTSA) estimates that 73 percent of cell phone subscribers use their phones while driving to stay in touch with loved ones, conduct business, report emergencies, call for assistance and report aggressive or drunk drivers.

But it's not just the phone anymore. Auto manufacturers such as Ford, General Motors and Daimler-Chrysler are placing a variety of information and entertainment devices in new vehicles. In many cars, drivers or passengers can check e-mail, surf the Web, and use real time navigation systems. Experts estimate that the global market for such devices will exceed $40 billion by 2010.

The tremendous influx of potentially distracting gadgets in motor vehicles has heightened concern about traffic safety among many lawmakers. "It's clear to anyone who drives on the road that there are a lot of distracted drivers," says Massachusetts Representative James Marzilli. "The single biggest distraction, and the one we need to regulate, is the cell phone."

Several studies conducted in the United States, Great Britain and Japan have concluded that people who use mobile phones while driving pose a greater risk of crashing than those who do not. One widely quoted report published in the New England Journal of Medicine in 1997 concluded that the distraction caused by phone use in motor vehicles quadrupled the risk of a collision during the brief period of a call, a rate equivalent to the impairment caused by legal intoxication.

Many safety advocates feel the time has come to remove cell phones and other technologies from the road. "This is an issue that affects every man, woman and child in this nation," says Patti Pena, a Pennsylvania mom whose 2-year-old daughter was killed in 1999 by a driver who was talking on his cell phone. "Technology is wonderful," she says, "but there is no benefit and only increased risk if you use these products while driving."

TWO DIRECTIONS

Not everyone agrees that cell phones in our cars pose a threat. NHTSA estimates that 25 percent to 30 percent of motor vehicle crashes are caused by driver distraction. However, studies published by the Harvard Center for Risk Analysis and the AEI-Brookings Joint Center for Regulatory Analysis both concluded that the risks posed just by cellular phone use while driving appeared small in comparison with other dangers on the road. A study of North Carolina crash data by the University of North Carolina Highway Safety Research Center concluded that cell phones ranked eighth in a list of distractions that caused crashes, below activities such as adjusting the radio or eating and drinking.

Telecommunications companies tout both the safety and commercial benefits wireless devices can provide for drivers. CTIA estimates that 139,000 emergency calls are placed by cell phone users each day.

New technologies in cars can automatically notify emergency personnel of an accident and can improve crash data. "Wireless phones are the only device in the car that can be used to promote safety," says John Mendez at the AT&T Wireless Corporate Communications and Public Affairs Office. Studies published in the New England Journal of Medicine and by NHTSA have concluded that cellular telephones often reduce emergency response times and actually save lives.

Concerns about the lack of hard statistical information have also slowed efforts to restrict cell phone use in cars. Before 1999, only Oklahoma and Minnesota included check boxes on their accident report forms to indicate whether cell phones factored into a crash.

Since 1999, at least 14 additional states have begun collecting that information, but it's too early to tell whether the use of wireless communication devices poses a greater threat to traffic safety than other distracting behaviors in the car. Early results from Minnesota and Oklahoma indicate that less than 0.1 percent of crashes in those states were attributed to CB radios or cell phone use.

Collecting new statistics just about cell phone involvement in crashes has proved to be controversial. "States are taking the right steps to gain data," says Sheryl Wright director of State Government Affairs at Sprint Corporation. "But they should track all distractions in the car, so you can get a good picture of what is happening in the vehicle."

There is some dispute whether future crash data will be useful. "Statistics won't reflect the problem," says Representative Peter Kilmartin, who sponsored cell phone legislation in Rhode Island this year. "There are lots of close calls," says Kilmartin, who also works as a lieutenant in the Pawtucket police force. "But there are no police reports if there is no accident. The best barometer for determining whether we should pass legislation is the people. My constituents tell me they want restrictions."

STATES FOCUS ON HANDS-FREE

This year, the most common cell phone proposal--considered in 35 state legislatures, the District of Columbia and Puerto Rico--was to prohibit the use of hand-held cell phones while driving. New York's ban, which takes effect in December, prohibits drivers from engaging in a phone call while their vehicle is in motion unless the call is made with a hands-free device or during an emergency. The statewide restriction gained support after three populous New York counties--Nassau, Suffolk and Westchester--outlawed hand-held devices. A survey of New York voters by Quinnipiac University indicated that more than 80 percent of New Yorkers support limits on cell phones in the car.

"This is a public safety and quality of life issue," says New York Assemblyman Felix Ortiz. "Requiring drivers to use phones equipped with hands-free devices will allow them to keep both hands on the wheel and maintain their concentration on driving and road conditions."

Telecommunications industry giant Verizon Wireless supports the New York approach. "We came up with a balance between safety concerns and the benefits of wireless phones that treats our customers favorably," says Verizon's Staff Vice President Mike Gallagher. "We believe state laws should recognize the safety benefits of wireless phones, exempt emergency calls, allow hands-free use, provide no disproportionate penalties for infractions and pre-empt all local ordinances."

The hands-free approach, however, is not uniformly endorsed by industry or by legislators. "Hands-free is a tool that is incomplete," says Dee Yankoskie, manager of Wireless Education Programs at CTIA. "Hands-free doesn't address whether it's an appropriate time or place to use the phone. Driver education is the tool that is the answer."

Mendez at AT&T Wireless agrees. "We are for laws that cover a wide range of distractions and don't single out the cell phone," he says. "Existing laws already cover reckless driving and are not being enforced. Laws that just single out a cell phone or a hand-held device are not a solution."

Many safety advocates hope to see states go beyond restrictions on hand-held phones in the car. "Hands-free is definitely a step in the right direction," says Tom Magliozzi, co-host of National Public Radio's Car Talk show. "But hands-free isn't really the issue. The problem is there's no phone that's brains-free. The brain just can't do that many things at once and do them well."

OTHER WAYS TO CURB DANGER

Although hands-free was the most common approach, legislators also considered a variety of other cell phone measures. Fourteen states and the District of Columbia looked at proposals to improve data collection. Legislators in 11 states proposed bills to increase the penalties for drivers who crash while using a cell phone. Seven states considered measures to prohibit school bus drivers from using cell phones while driving. Seven states had proposals to prevent new drivers from using cell phones. Two states studied prohibitions of all telecommunications technology in the car.

A New Hampshire bill that enhanced the state's reckless driving laws won wide approval from telecommunications companies. Sponsor Representative Robert J. L'Heureux originally proposed the "Jessica Smith" bill--House Bill 652--after a New Hampshire woman was killed in a crash when a block of ice fell off a truck on a highway and caused another car to swerve and hit her vehicle head-on. The measure was intended to force truck operators to remove snow and ice from their vehicles, but was broadened to include stronger penalties for all forms of negligent driving behavior. It's an approach supported by companies such as Sprint and AT&T Wireless. "We support legislation such as the New Hampshire bill, that would address total inattentive driving including the cell phone," says Wright at Sprint.

STATE ACTIVITY CONTINUES

If trends continue, cell phones and driving are likely to remain a high profile issue in 2002. The New York law, proposals in Congress and the rising numbers of drivers with cell phones have all drawn attention from legislators and their constituents. "Out of the 800 to 1,000 bills I've sponsored in my 11-year legislative career," says Representative Marzilli, "no other bill has caused as many people to thank me for proposing it."

Attitudes are changing among legislators, he adds. "Two years ago, a colleague jokingly threatened to drive his car through the front door of my house if I passed a bill that would take away his cell phone in the car. This year, that same legislator sponsored a bill to restrict hand-held cell phones in the car."

Matt Sundeen is NCSL's expert on cell phones and driving.

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CONGRESS LOOKS AT CELL PHONE RESTRICTIONS

Legislative activity on cell phones and driving offers a clear example of the states operating as "laboratories of democracy." Legislatures are considering various approaches and, over time will learn from each other about what works and what doesn't. And some legislatures may not be persuaded that it is necessary to act at all.

Bills recently introduced in Congress, though, would mandate one national solution. Under proposals sponsored by New jersey Senator Jon Corzine and New York Congressman David Ackerman, states would be penalized if they did not restrict the use of cell phones while driving. The proposals would reduce a state's portion of federal highway money by 5 percent the first year and 10 percent for each subsequent year until it enacted federal cell phone restrictions.

At NCSL's 2001 Annual Meeting in San Antonio, Texas, state legislators unanimously voted to oppose congressional legislation that either mandates states to restrict cell phone use while driving or preempts state laws and regulations with regard to restrictions on cell phone use while driving.

--Neal Osten, NCSL