According to the Pennsylvania Department of Transportation, more than 14,600 crashes involved a distracted driver in Pennsylvania in 2012. In 57 of those crashes, people died. Nearly 11 percent of Pennsylvania crashes over the past five years involved a driver distraction, resulting in more than 300 fatalities statewide.
The law in Pennsylvania regarding cellphone use while driving is far too weak. It was a good first step (as opposed to no law at all), but more needs to be done. With four distracted driving bills currently in the state House of Representatives and Senate, now is the time to join our neighbors in New Jersey and implement a hands-free law in Pennsylvania to make our roads safer.
With the proliferation of smartphones, texting, emailing and navigation systems (to name a few), the car has quickly gone from a simple mode of transportation to a mobile office in which business is conducted and social communications take place. For many, it seems as though this culture of connectivity even while driving has been adopted and accepted. We forget so quickly that we are traveling down the road at high speeds in a 4,000-pound metal structure that can cause instant death to another person. We cannot afford to be distracted while driving. I represent clients who are the casualties of this dangerous activity. It only takes a split-second to change a life forever.
For years in Pennsylvania, no statewide statute existed with regard to cellphone use while driving. As a result, many municipalities promulgated their own laws. For instance, as of 2009, pursuant to Philadelphia Code 12-1132, it is prohibited to use a mobile telephone for voice communication, messaging or emailing while operating a motor vehicle on any street within Philadelphia (and also while operating a skateboard, scooter, inline skates or any bicycle). However, the Pennsylvania Vehicle Code states that the Vehicle Code "shall be applicable and uniform throughout this commonwealth and in all political subdivisions in this commonwealth, and no local authority shall enact or enforce any ordinance on a matter covered by the provisions of this title unless expressly authorized." Therefore, the argument was made that these municipal laws were pre-empted by state law — even though state law was silent on the specific issue of cellphone use while driving. In a May 4, 2011, opinion, Lehigh County Court of Common Pleas Judge James T. Anthony ruled in Commonwealth v. Reyes, 2011 Pa. Dist. & Cnty. Dec. LEXIS 90 (Pa. County Ct. 2011), that an Allentown city ordinance prohibiting the use of cellphones while operating a motor vehicle was pre-empted by the Vehicle Code pursuant to 75 Pa.C.S. §6101 and was, therefore, invalid.
Because of the issue of state pre-emption, there was a call for uniformity across the state, and Pennsylvania has taken a step in the right direction. On November 9, 2011, a bill was signed into law addressing cellphone use while driving. Pennsylvania enacted 75 Pa.C.S. §3316, titled "Prohibiting Text-based Communications," which banned texting while driving. While this certainly was a step in the right direction to bring uniformity to the state, the act pre-empts local ordinances such as Philadelphia’s more protective law prohibiting all cellphone use, not just texting. Many have been calling for additional safeguards against cellphone use while driving in addition to the act’s ban on texting. As will be discussed herein, there are four bills that are currently in the Pennsylvania House and Senate that could strengthen our distracted driving law this coming year.
The Current State
The act prohibits an operator of a motor vehicle to send, read or write a text-based communication while the vehicle is in motion. "Text-based communication" is defined as "a text message, instant message, electronic mail or other written communication composed or received on an interactive wireless communications device." The act further states that this law does not prohibit a person from reading, selecting or entering a telephone number or name into an interactive wireless communications device for the purpose of activating or deactivating a voice communication or a telephone call. Violation of the act is a summary offense and carries a fine of $50. The offense is a primary offense, so you need not be breaking other laws to be pulled over and ticketed. The act expressly pre-empts all local ordinances of any municipality with regard to the use of an interactive wireless communications device by the driver of a motor vehicle.
So just how well are these first efforts working? The act took effect March 8, 2012. According to AAA Mid-Atlantic analysis released in April, in the first full year of the act being in effect, 1,302 citations were issued in Pennsylvania. Even with the implementation of the act on March 8, 2012, the 2012 statistics are still alarming — 57 people died in distracted driving accidents during 2012, officials report. Is enough being done to protect our citizens?
Currently, several bills in the Pennsylvania Legislature seek to strengthen the prohibitions of cellphone use while driving. For instance, House Bill 693 was referred to the House Committee on Transportation on February 13. HB 693 would prohibit the use of all handheld wireless communication devices while driving in Pennsylvania unless the phone is in "hands-free" mode or the driver is reading, selecting or entering a telephone number into the phone or the driver is utilizing a navigation system. HB 693 would prohibit any person with a learner’s permit or junior driver’s license from utilizing an interactive wireless communications device regardless of whether or not they utilize a hands-free system. The bill also calls for an increased fine for violations in a school zone or construction zone. Lastly, the bill calls for public education and awareness programs to be developed by the Pennsylvania Department of Transportation to combat distracted driving.
Senate Bill 415 was referred to the Senate Committee on Transportation on February 5. SB 415 would likewise prohibit the use of an interactive wireless communications device for texting or voice communications except when hands-free mode is utilized. SB 415 would also establish a rebuttable presumption that an operator who uses an interactive wireless communications device while the vehicle is in motion is presumed to be engaging in prohibited communication. The presumption is rebuttable by evidence that shows that the operator was not engaged in a call or wireless communication.
House Bill 109, which was referred to the Committee on Transportation on January 15, adds an additional fine for any driver convicted of an underlying offense of careless driving who, at the time of the careless driving, is distracted by use of a cellphone, among other items, to be fined an additional $50 in addition to any underlying fines for careless driving. HB 109 calls for the placement of all fines collected into a "Driver Distraction Awareness Fund" that would be used to initiate an educational program to encourage motorists to eliminate distractions in the vehicle.
Lastly, House Bill 363 would allow municipalities to enact cellphone bans for drivers. HB 363 would not affect the act with regard to texting, as texting would be regulated at the state level.
In addition to these legislative efforts, the legislature has continued to express concern and support for distracted-driving awareness. Alongside a national observance of April as "Distracted Driving Awareness Month," on March 14, the state House, by way of House Resolution No. 154, designated the month of April as "Distracted Driving Awareness Month."
As attorneys, we have the responsibility to be active participants in ensuring the safety and welfare of the citizens of this state. This year, the future leaders section of the Pennsylvania Association for Justice has joined Joel Feldman’s "End Distracted Driving" efforts by traveling to schools to educate our youth about distracted driving — an extremely important endeavor. I will be making a presentation at my alma mater, Lower Merion High School, in the fall. The passage of any one of the above-referenced bills would add much-needed prohibitions to cellphone use while driving. It’s common sense. Don’t be hands-off on the hands-free debate. Call your local congressperson. •
Josh Schwartz is an associate at Eisenberg, Rothweiler, Winkler, Eisenberg & Jeck, where he devotes his entire practice to representing victims of catastrophic personal injury and wrongful death accidents, including medical malpractice and products liability. He serves on the board of governors of the Pennsylvania Association for Justice and serves as the vice chair of PAJ’s future leaders section.