Short Take: When Law Is A Mere Distraction

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.

27 thoughts on “Short Take: When Law Is A Mere Distraction

  1. John Hawkinson

    Naive question: Is it apparent that this law vests the judgement in the arresting officer rather than the reviewing court?

    1. SHG Post author

      The reviewing court always reviews the officer’s exercise of authority. Hence, the name “reviewing court.” But that said, the court will have nothing more to review than the officer’s word. It’s possible that the officer will testify, after stopping and seizing 27 kilos, that all he observed was a driver running his fingers through his glorious locks of hair and a court finds the stop unconstitutional even under this law, but most cops will figure out that stating he observed the driver looking at the dashboard, reaching with his hand toward the center console, will be more than sufficient to do the trick.

      1. Jeff Gamso

        It works the other way, too. Every traffic ticket can have a distracted driving enhancement. After all, the driver must have been distracted or he wouldn’t have been speeding/failing to signal a lane change/ following too closely/driving too slowly/you name it.

        Nice cash cow for the courts and the providers of those anti-distraction classes.

        As an aside, I’m told they’ve been working on this law for years. Because SOMETHING HAD TO BE DONE.

          1. EARL WERTHEIMER

            “using a handheld electronic wireless communications device” excluded the Amish. Now that they have closed the loophole. I expect a lot more distracted driving tickets being given to buggy drivers in Ohio…

      2. LocoYokel

        What do you think the odds of this law surviving a constitutional challenge are?

        I understand it will generally be small potatoes and not worth challenging but at some point something will come up during one of these stops (maybe your 27 kilos) that will make it worth the effort and expense for someone to chase this down the constitutional path.

        1. Jeffrey Gamso

          Down the road, when there are enough victims, someone might take it on as a class action.

          In the meantime, I should probably point out (maybe should have hours ago) that distraction is an enhancement, not a violation. The new law does not permit cops to stop a car because they think the driver is distracted. But once they’re giving a ticket for something else, they can write the driver up for distraction.

          Doesn’t mean the cops won’t abuse it, of course. But stops nominally based on distracted driving will remain unconstitutional.

  2. DaveL

    Why do I get the feeling Ohio is about to get a crash course in how distracting it can be to be a black man driving a nice car?

    1. SHG Post author

      Everybody knows how much black guys like to futz with the climate controls. And kids with their damn music. It’s an epidemic.

  3. wilbur

    Everyone is distracted while driving to some extent, unless your radio/sound system doesn’t work, you don’t have a phone with you, you’re alone in the car and your mind never wanders.

    Everyone but me, of course. And like the man said, everyone who passes me is a maniac. Everyone driving slower than me is an idiot.

  4. Lee

    So much for eating a burger or drinking a soft drink while driving. And you better not be caught changing that radio station! 🙁

  5. Charles

    “Officer, I was forced to read this badly formatted text while driving because SCOTT refused to get that nice mobile app from Jamie. It was an article about why one bad apple spoils the bunch. I think you’d like it.”

  6. Kemn

    No more driving with a passenger, because you might talk to them. No more driving with the radio on, because you might sing along to the radio, or engage in thought while listening to the news.

    No more looking out the window of the car at the scenery or billboards. No appreciatively breathing in fresh air while driving.

    Definitely don’t sneeze or cough.

  7. B. McLeod

    So a stroke or seizure while driving, even with no prior history, would be a potential charge in this jurisdiction.

  8. Anonymous Coward

    Does this law also apply to the police? Or is it asking too much of the guardians of society to not use their dashboard mounted computers to surf for porn while driving 20 mph over the speed limit?

  9. Patrick Maupin

    Such a small penalty. Surely if Potter Stewart knows the big things when he sees them, we can trust the cops to know the small things when they see them.

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