Flaws in Kansas and Missouri Texting While Driving Laws

With some limited exceptions, Kansas Statute Annotated 8-15,111 prohibits writing, sending, and reading written communications on a wireless communications device while operating a motor vehicle on a public road (i.e. texting while driving).

Missouri Revised Statute 304.820 has substantially the same prohibition, but only for those “twenty-one years of age or younger.” However, Missouri’s law addresses commercial vehicles, while Kansas’s does not.  In Missouri, anyone operating a commercial vehicle is prohibited from using a hand-held mobile telephone entirely.  While operating a commercial motor vehicle, the driver is also prohibited from using a wireless communications device to send, read, or write a text message or electronic message.

Missouri defines the term “electronic message” to include “electronic mail, a text message, an instant message, or a command or request to access an internet site,” but the term is not limited strictly to those examples.  The state might argue that the use of, for example, a YouTube app (or other apps that are merely mobile versions of a website) is still an attempt to access an Internet site, albeit one customized for mobile phones.  Kansas defines the prohibited act as “using a wireless communication device to manually type, send or read a written communication, including, but not limited to, a text message, instant message or electronic mail.”

Missouri’s idea that younger people should be prohibited from texting and driving, but anyone over the age of twenty one should not, is dubious.  While it is true that younger people are less experienced drivers, they are infinitely more experienced texters.  It is hard to imagine that all 20-year-old drivers are able to focus less on driving while texting and driving, than all 70-year-old drivers doing the same.  Both drivers are engaging in the same activity, but texting or emailing is an activity that likely requires more focus from the 70-year-old driver than the 20-year-old driver.  The former may still be learning how to communicate electronically, while it may be almost second nature to the latter.  This is in no way advancing an argument that younger drivers should be exempt from this law.  Rather, older drivers should not be exempt from the law.

The overarching problem with both laws is their scope.  The following acts are commonly done with cell phones while driving, yet they are not expressly prohibited by either state’s laws:

Using GPS apps on your phone (which could require the looking up of an address and inputting the address into the app, all while driving)

Using music apps in any way (you could be creating a 100-song playlist while driving, which obviously requires far more distraction than a simple text message or email)

Using Facetime or a similar video phone app (while you could Facetime or Skype without looking at the camera—thus, away from the road—you likely would be looking at the phone a fair amount)

Using game apps (no explanation needed as to why you wouldn’t want the car next to you playing Candy Crush while driving down the highway)

Using camera apps (the idea of someone taking pictures of themselves, reviewing them, and inevitably retaking them, almost makes you wish they were texting)

Using video apps (again, the idea of the driver next to you watching a hilarious YouTube video for the first time almost makes the idea of them texting seem like a better alternative)

Going through your contacts to find a number you want to call

Interestingly, Kansas exempts devices that are “voice-operated and which allow the user to send or receive a text based communication without the use of either hand, except to activate or deactivate a feature or function.”  This is likely just a poorly phrased law, with its intention being to exempt messages that are actually written, sent, or received by using a voice-operated function, rather than to exempt the phone entirely.  If this law were to be read to mean exactly what it says, then all activity on iPhones would be exempt from the law, as the phones themselves are not subject to the law, as they do allow users to send or receive a text based communication by simply activating Siri and then telling her to text one of your contacts, dictating the text, and commanding her to send the text, all by voice.  Nonetheless, it seems apparent that the Kansas law’s intent is to exempt people using the phone in that matter, rather than exempt the phone entirely, due to its capability of being used in that manner.

Missouri handles the voice-operated exception much more clearly by simply exempting:  “the use of voice-operated technology.”

The crux of these laws’ problem is their enforceability.  Imagine how this plays out in the real world with a driver who is aware of the scope of these laws and his or her Fourth Amendment rights:

[Officer sees Driver typing something into their phone as Driver drives past Officer, Officer pulls over Driver]

Officer: “I saw you texting when you drove past me.”

Driver:  “I wasn’t texting; I was (insert any use of the cell phone not prohibited by the law).”

Officer:  “Open up your texts and let’s see when the last one was sent.”

Driver:  “Unless you have a warrant, you don’t have the right to go through my phone and I’m not going to consent to such a search.”

Officer:  “Fair enough. Have a good day.”

Texting while driving is a serious issue that is being addressed by state legislatures around the country.  The problem is that unless the holding of a phone while driving a car is illegal, the driver will always be able to claim they were engaging in a legal activity.

Note:  There are two cases currently before the Supreme Court of the United States regarding cell phone searches:  United States v. Wurie and Riley v. California.  In Wurie, the question before the Court is whether the Fourth Amendment permits the police to review, without a warrant, the call log of a cellphone found on a person who has been lawfully arrested.  This decision is unlikely to address the issue of whether or not a police officer can go through someone’s phone who has been pulled over but not arrested.  In Riley, the question before the Court is whether evidence admitted at trial was obtained in a search of a cell phone that violated the phone owner’s Fourth Amendment rights.  This is even less likely to address an issue relevant to solving the problem with texting and driving laws.  While that case could be relevant if an officer took it upon himself or herself to simply seize the driver’s phone and gather evidence, if the phone’s owner had a passcode to access the phone, this officer’s efforts would be immediately thwarted.

 

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