It’s been mentioned on occasion that writing law is hard, often too hard for legislatures to bother with when there is a problem that demands a solution. Something must be done, and in Ohio, as Tim Cushing notes, the lege signed a blank check.
An Ohio law that expands the definition of distracted driving took effect Monday.
The previous law defined distracted driving as driving “using a handheld electronic wireless communications device” targeting traditional mobile phone usage while driving. The new law retains this definition while also expanding distracted to include “Engaging in activity that is not necessary for the vehicle’s operation and that impairs, or reasonably would be expected to impair, the driver’s ability to drive safely.”
No doubt this law was meant to cover some wrong, some evil, some risk that the legislature deemed too grave to go unpunishable, but what that may be can’t be discerned from the words.
The new law provides no further explanation of the new definition, leaving it to the discretion of officers and the courts. It is thought that this definition could be applied to any kind of distraction that is related to an accident, including consuming food and beverages or adjusting car systems like climate and radio.
The possibilities are infinite, and so the law is as vague as possible lest any “distraction” go unpunished. And how would one prove a violation? A cop’s word would be all that’s necessary. After all, what other proof could there be that a driver was adjusting the climate controls? Notably, there is nothing in there requiring the officer to observe the driver being dangerous or reckless, as there are already laws prohibiting that. Rather, the law prohibits actions unnecessary to driving the car and that “reasonably would be expected to impair, the driver’s ability to drive safely.” Not that he drove unsafely, but could have.
The penalty imposed for distracted driving isn’t severe, which likely soothes the fevered brow of any legislator harboring lingering doubts as to the wisdom of the law.
The new penalty is an additional $100 fine, which may be added on to an underlying traffic violation or may be waived after the completion of a distracted driving safety course offered by the Ohio Department of public safety.
However, the penalty isn’t the problem. Remember our old friend Whren, upholding the constitutionality of pretext stops provided the officer observes some driving violation, no matter how disconnected to his real purpose in desiring to stop a vehicle? In the old days, a cop might have to take out his flashlight to break a taillight in order to justify a stop, provided there were no fog lines on the road. Now, even the risk of flying red plastic to the eye is removed to accomplish a vehicle search.
There is no doubt that drivers engage in myriad dumb things while operating a vehicle, and that their poor choices, short attention span and preoccupation with hair care can present a risk of harm, even death, to others. It’s never been entirely clear to me why the distraction caused by talking on a hand-held phone was any different than the distraction caused by talking on a hands-free phone. Sure, a hand is taken out of the driving equation, but the far more troubling problem is that the mind is lost to whatever pressing problem is under discussion.
And, to add a personal note, there is nothing, but nothing, you have to say to anyone that is worth my children’s lives. And you suck driving while talking on a cellphone, no matter how good you believe you are. You probably drive like crap when you have no distractions, but that’s more a matter of personal bias on my part, so I won’t press it.
But the language in Ohio’s Sub. H.B. 95 is so ridiculously vague, absurdly broad, utterly without rational limit, as to criminalize everything and nothing. It is, as Tim notes, a blank check written by the legislature, but paid for by whomever a cop decides to stop. It’s like they weren’t even trying when they drafted and enacted this law.