Drunk Driving vs Cell Phones

July 20, 2009

A lot of things impair a driver in his driving.  Only a few are against the law.  Imbibation of alcohol to a certain measured level is one.  Ingesting many listed drugs to any uncertainly-measured level is another.  Reading a book, texting, or talking on a cell phone are not unlawful -per se- unlawful activities to carry on while driving.

What’s the difference?    Any criminal defense lawyer can tell you:  Since Driving Under the Influence of Alcohol is a misdemeanor crime, and Manslaughter First Degree is, among other things, a death caused while in the commission of a misdemeanor, a driver who, while Driving Under the Influence of Alcohol, causes an accident resulting in a death, must answer to a charge of Manslaughter First Degree, punishable up to life imprisonment.  Contrast that with a driver who causes a death by simple negligence, i.e., not in the commission of a misdemeanor, faces only a charge of Negligent Homicide, punishable up to one year in the County Jail.

Should cell-phone users face the same penalty?  Certainly not now, since the legislature has enacted no such a law.  Should the legislature treat the use of cell phones the same as alcohol or drugs?

Most drivers think they are not affected by their own use of cell phones, but these same drivers believe other drivers are definitely distracted by the use of cell phones while driving.  Research shows drivers all overestimate their own ability to dominate the distractions of cell phone use while driving.  Five states and the District of Columbia require drivers to use hands-free devices to talk on a cellphone, but this could only cover up the real problem.

A survey of 1,506 people by Nationwide Mutual Insurance, 81 % of cellphone owners acknowledged they talk on phones while driving with 98% who considered themselves safe drivers.  However, 45 % of them said they had been hit or nearly hit by a driver talking on a phone.  “When we ask people to identify the most dangerous distraction on the highway today, about half identify cellphones,”said Bill Windsor , associate vice president for safety at Nationwide.  “But they think others are dangerous, not themselves.”

Extensive research shows drivers using phones are four times as likely to cause a wreck as other drivers, the same likelihood as drivers with a blood alcohol level of 0.08% Blood Alcohol Content (right on the number of the illegal limit for alcohol consumption).   Moreover, hands-free devices do not lessen the risk and may even worsen the risk by suggesting it is no longer present.

A Harvard study in 2003 estimated that cellphone distractions caused 2,600 traffic deaths annually and caused 330,000 accidents with moderate or sever injuries.   Nevertheless, state legislatures, while after introducing 170 bills last year to address distracted driving passed fewer than 10 such bills.  Oklahoma is one of the states who has rejected any effort to limit distracted driving.  Legislators from Oklahoma themselves use cellphones while driving, some “from when I leave the Capitol to when I get home, and that’s a two-hour driver,” said Tad Jones, the majority floor leader of the Oklahoma House.  He helped block legislation restricting cellphone use while driving.

The cellphone industry argues that from 1997 to 2007, the number of reported accidents fell to 6 million from 6.7 million.  “There are more drivers, more talking drivers, “ said John Walls, spokesman for the Cellular Telecommunications and Internet Association. “If it’s so risky, then logically one would think there would be more accidents.”  David Strayer, a psychology professor at the University of Utah and a leading researcher in the field of distracted driving, counters: “We’ve spent billions on air bags, antilock brakes, better steering, safer cards and roads, but the number of fatalities has remained constant.  Our return on investment for those billions is zero,” he said.  “And that’s because we’re using devises in our cars.”

Better data could tell us more.  But 21 states do not even include a box on accident forms for accident investigators to mark electronic devices as a cause.  Moreover, such forms require the driver to confess his own cellphone use in the accident. This is not the most forthcoming method but a better one is lacking at the present time.

Professor Strayer has spent a decade studying driver distraction.  He uses a driving simulator, operated by a volunteer.  The task is to follow closely a white car that often slows abruptly.  Meanwhile, a voice on speaker talks to the driver, asking questions like, “When you do a pull-up, do your palms face toward you? and”Can you touch your elbow to your ear?”  Little problem usually, the driver sometimes took her hands from the wheel when trying to answer a question like, “True of false: A peanut butter jar opens clockwise,” She was so focused on her call that she seemed to miss surprises, like a body by the side of the road.

Texting while driving was worse.  The driver soon slammed into the rear of virtual car in front of her.  (Fourteen states ban texting while driving).   Strayer’s research uses a small camera to track eye movements, and it shows texting drivers regularly focus on their screens for more than 5 seconds at a time.

This research shows multitasking drivers are four times as likely to crash as those focused on their driving, and studies in Canada and Australia agree.  The highway safety administration estimates that drivers using a hand-held device are at 1.3 times greater risk of a crash or near-crash.  Scientists, such as Steve Yantis, professor psychological and brain sciences at Johns Hopkins University, note that the brain has trouble assessing separate streams of information, even if one is visual and the other aural.

Cellphones are the most common cause of driver distraction.  Conversation with fellow passengers do not present the same danger.  Scientists say listening on the phone requires more than listening.  The words bring up images in the mind’s eye. That is not a problem, but when a car swerves unexpectedly or a pedestrian comes near, the brain lacks the processing power to react in time.

Title 21. Crimes and Punishments
Chapter 24 – Homicide
Manslaughter
Section 711 – First Degree Manslaughter
Cite as: O.S. §, __ __When perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor.

Title 21. Crimes and Punishments
Chapter 24 – Homicide
Section 701.8 – Second Degree Murder
Cite as: O.S. §, __ __

Homicide is murder in the second degree in the following cases:

1. When perpetrated by an act imminently dangerous to another person and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual; or

2. When perpetrated by a person engaged in the commission of any felony other than the unlawful acts set out in Section 1, subsection B, of this act.

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