Articles Posted in Distracted Driving

Over the years public awareness of the seriousness of distracted driving has only grown. In the same vein, our legal system’s efforts to address the problem have matured, reflecting both changes in communications technology and a better understanding of distracted driving as a problem.

One result, as The Oregonian reports, are new changes to Oregon’s distracted driving laws, set to come into effect on October 1. At the core of the new rules are “a stricter ban on cellphone use while driving and higher fines which escalate for repeat offenders.”

As I noted back in May when HB 2597, as the law is known, was still making its way through the legislature, there are two key elements to this law: one involving definitions and the other focusing on penalties.

A few weeks ago I wrote about efforts to design a ‘breathalyzer for distracted driving’ – an app that law enforcement officers could use to determine whether a smartphone or other electronic device had been in use in the moments surrounding an auto accident.

Now, according to a Seattle Times story republished in The Oregonian, “anti-distraction software by a tech startup called Cellepathy would automatically go into a restrictive ‘driver mode’ when a phone is within a moving vehicle.”

Technology along these lines has long been a goal of activists looking for ways to reduce or end distracted driving. The challenges are formidable. At the most basic level, how does one make a technology sufficiently sophisticated to distinguish between the driver of a vehicle and passengers (this problem sunk some early ideas, such as using a smartphone’s GPS system to tell when the car is moving)? How does one make it both simple to use and relatively difficult to fool?

With the Oregon Senate taking up HB 2597, a bill that would significantly increase fines for distracted driving, this is a good moment to look at both the state of the law here in Oregon and at a new technology-driven effort to combat the problem.

As The Oregonian reports, the state House passed HB 2597 early this month. According to the newspaper’s legislative tracking site the Senate held its first hearings last week and the Senate Judiciary Committee has a work session on the measure scheduled this Tuesday (May 30). If enacted, the legislation would make major – and much needed – alterations to Oregon’s existing distracted driving law.

Under current law, as laid out in ORS 811.507, distracted driving is a Class C traffic violation, punishable by a fine of up to $500 (though in practice assessed fines are often much lower – usually around $160). According to The Oregonian “under HB 2597, Oregon drivers could be fined up to $2000 for using a ‘mobile electronic device’ while on the roads. Fines for a first offense could total $1000 and be erased if drivers take a state-approved distracted driving avoidance class at their own expense. Subsequent offenses, or a first offense that causes a traffic collision, would result in higher fines that could not be waived.”

A recent article in the Salem Statesman-Journal outlined a distracted driving conviction in Keizer that was a first for Oregon. According to the newspaper “a Medford woman became the first person ever to be convicted of causing another person’s death by driving while distracted by her cell phone.”

The 50-year-old woman pleaded guilty to criminally negligent homicide earlier this month “and was sentenced to three years of supervised probation,” the newspaper reported. The September 2015 accident took the life of a 68-year-old man who was crossing the street when struck by the woman’s car.

The case highlighted a significant loophole in Oregon’s distracted driving statute. As the Statesman-Journal reports, a 2015 Oregon Appeals Court ruling (State v Rabanales-Ramos – 273 Or App 228 (2015)) took a narrow view of the Oregon distracted driving law (ORS 811.507), essentially creating a loophole for all forms of distracted driving other than talking on the phone or texting. Under this interpretation, for example, using an eReader such as a Nook or Kindle would have been permitted while driving.

A new law that came into effect in California this month is likely to be closely watched here in the Pacific Northwest and elsewhere around the country. The wide-ranging legislation goes “further than most states in prohibiting the use of cellphones, banning drivers from even holding mobile devices while driving,” according to the New York Times.

The newspaper describes it as a legislative attempt to get ahead of the technology curve. “The law builds on earlier legislation that prevented drivers from talking and texting but did not prohibit them from streaming video, for instance, or using apps like Facebook and Twitter,” the paper reports. It notes that “late last month a family filed a lawsuit against Apple over a 2014 accident in which a driver using FaceTime crashed into the family’s car, killing their 5-year-old daughter.”

It may seem obvious that a law designed to prevent texting would also cover the use of Skype or FaceTime, but that is no excuse for legislators failing to tighten up the language of the relevant statutes. For example, here in Oregon the law governing distracted driving, ORS 811.507 (see link below), defines a “mobile communications device” as “a text messaging device or a wireless, two-way communications device designed to receive and transmit voice or text communication.” Would that definition cover the latest generation of the iPod Touch, a device that can’t make phone calls or send text messages but can surf the internet and make video connections? In a world where wi-fi networks are rapidly spreading around cities and towns this is no longer a theoretical question.

A newly published report from SafeKids, an organization which regular readers know I have long supported, takes many unsettling facts about teens and cars out of the realm of hearsay. The best way to prevent teen car-related deaths and injuries is to know how and why they occur in the first place. That makes this report essential reading for every Oregon parent.

The report summary begins with an uncomfortable figure: 2138… the number of teens killed in car crashes in 2014 (the most recent year for which full data is available). On the positive side, it notes that “from 1994 to 2013, the rate of teen drivers killed actually decreased by 61 percent” adding that this two decades of progress “demonstrates the effectiveness of prevention efforts by government, industry, the medical community and nonprofits in passing graduated licensing laws, engineering safer cars and raising public awareness about risky behaviors.”

The report goes on to state that “2014, however, saw the death rate begin to increase again and early estimates for 2015 suggest that may continue.” Its main prescription is more of the kind of education and public outreach that has been so effective over time. We have all heard the public information campaigns, but it still needs to be said, and repeated often: avoid distracted driving, don’t overload the car, don’t speed and, perhaps most importantly: always buckle up and never drink and drive.

An article published this week in the New York Times outlines what many of us have long suspected: distracted driving, the paper writes, “by just about any measure, appears to be getting worse. Americans confess in surveys that they are still texting while driving, as well as using Facebook and Snapchat and taking selfies. Road fatalities, which had fallen for years, are now rising sharply, up roughly 8 percent in 2015 over the previous year, according to preliminary estimates.”

It quotes the head of the National Highway Traffic Safety Administration saying “radical change requires radical ideas,” and then goes on to offer some striking examples. The most unique, proposed by legislators in New York “is to give police officers a new device that is the digital equivalent of a Breathalyzer – a roadside test called the Textalyzer.”

As the Times outlines, an officer would collect phones from drivers and passengers and use the device “to tap into (each phone’s) operating system to check for recent activity.” The answers provided by the machine would determine not only whether the driver had been texting but also whether he or she had violated New York’s hands-free laws (the oldest in the nation) in any other way. “Failure to hand over a phone could lead to the suspension of a driver’s license, similar to the consequences for refusing a Breathalyzer,” the paper reports.

Pedestrian deaths around the country rose sharply last year, according to data compiled by the Governors Highway Safety Association and recently published by CityLab, a blog that is part of The Atlantic magazine. The news is troubling, and perhaps even a little counter-intuitive and should prompt officials at every level to look more closely with how we design our roads and streets.

The group “estimates that the number of pedestrians killed in traffic increased 10 percent from 2014 to 2015 in the US. That number, based on preliminary data reported by all 50 states and the District of Columbia, is in line with a longer-term trend: From 2009 to 2014, pedestrian fatalities increased by 19 percent, even as total traffic deaths declined over that same period.”

According to the GHSA the highest pedestrian fatality rate is 3.55 per 100,000 people in New Mexico. Minnesota is the safest state for pedestrians with only 0.27 fatalities per 100,000. Oregon, at 1.44, comes in a little better than the national average of 1.53 while Washington State is significantly better at 1.06. (all figures are for 2014)

I have often written about the fact that we tend to think of distracted driving as something that teens and 20-somethings are especially prone to, despite a growing body of evidence identifying this as a problem that affects every age group.

The latest reminder that this is not just a young person’s issue comes from Greenhouse Management magazine. Under the headline “It Can Wait – Even the Job” the magazine offers some pointed advice: “business owners, CEOs, managers and other figures in the corporate world are slower on the uptake than they should be” at a time when for many of us the demands of the office are such that “daily tasks, such as driving to work, can easily become an afterthought when an important call, text or email comes in.”

The article also raises an noteworthy legal point: “Although it is commonly assumed that employees using personal cellphones in their personal vehicles are liable to nobody but themselves in the event of a crash, (President of consulting firm OperationsInc David) Lewis said the argument could be made that employers are responsible for how and when their employees take and return business calls and messages.” As an Oregon distracted driving lawyer I agree with this analysis. It is a basic principle of law that employers are responsible for what employees do during the course and scope of their jobs.

A study recently released by the Oregon Department of Transportation appears to show that careful and comprehensive education efforts can have a significant impact on distracted driving, according to a recent report by Bend TV station KTVZ. The station quotes an ODOT report finding that “a coordinated high-visibility campaign in Bend aimed at reducing distracted driving had a significant impact on raising awareness of the importance of not texting/talking while driving.”

According to the TV station, the study was co-sponsored by the ODOT, Portland State University and Bend’s police department. “The report shows, among other findings, that almost 12 percent of people who were exposed to the “U Drive, U Text, U Pay” message reduced their texting-while-driving activity,” KTVZ reports.

Considering that the tagline of the campaign focused on money – the fines drivers can receive if they violate Oregon’s distracted driving laws – it is especially noteworthy that the study found that “the most common reason for respondents decreasing their texting-while-driving was ‘increased awareness of safety.’” This reason was cited by 30 percent of the drivers studied. In other words: while the campaign slogan focuses on drivers’ wallets the program was successful because it helped convince Oregon drivers that safety issues come first.

50 SW Pine St 3rd Floor Portland, OR 97204 Telephone: (503) 226-3844 Fax: (503) 943-6670 Email: matthew@mdkaplanlaw.com
map image