Council should be able to ban cell phones while driving.
Stephen Gambescia, PhD, MEd, MBA, CHES
Posted November 4, 2008
Three Philadelphia Council Members have introduced a bill in September to ban the use of hand-held cell phones and dissuade drivers from text messaging and using PDAs to go to the Internet.
This important public safety measure should be well-received and supported by other Council members and hopefully will receive little resistance from some of Pennsylvania’s administrative and legal bodies.
This local motor vehicle restriction should be supported given its common sense and well-supported, safety risk-reduction rationale; and when a full understanding of local public health and safety authority is considered, it should overstep possible state agency roadblocks.
The first principle espoused to one who is learning to drive in Pennsylvania is "driving a motor vehicle in the state is not a right, it is a privilege." Any driver who secured a license in this state can recall this civic mantra. There is a reasonable corollary to this principle. That is each driver should operate the vehicle only while of sound mind, sense and body. Operating a motor vehicle clearly demands the attention of all of one's senses.
Common sense tells us that operating a phone draws upon one's senses; thereby compromising what is needed to operate safely a motor vehicle. Waiting to see accident reports demonstrating that phone use while driving causes carnage is an irresponsible expectation of policy makers. Moreover, the evidence is already here that it is a problem.
As recent as 2000, data showing that hand-held phones used by drivers were associated with accidents were “hard to come by” because few states, including Pennsylvania, required officers at the scene of a crash to record that the driver was on the cell phone.
That has changed.
The National Highway Traffic and Safety Administration estimates that about 25 percent of the accidents nationwide can be directly attributed to driver distraction which includes talking, dialing, and answering a phone. (Eating, drinking, grooming, and adjusting audio components in the car are big culprits as well.) Therefore, about a quarter of our states now require officers at the scene of an accident to note distractions on motor vehicle crashes. Pennsylvania required this since January 2002.
PennDot reports that in 2006 there were 1,241 car accidents involving drivers who were also using a cell phone at the time of the accident. There were 60 accident reports that year of drivers in an accident who were using their “hands-free” phone device. The New Jersey Department of Transportation reported 2,013 accidents associated with hand-held cell phone use during 2002 to 2005. New Jersey passed its statewide ban in 2004 and it was strengthened last March.
What may be even more disconcerting today is that many teen drivers not only talk incessantly on the phone while driving but extend their communication to text messaging. The risk of driving while distracted by phone use is not simply a matter of style and taste. Just this year researchers at Carnegie Mellon University found through comparative brain scans that when individuals were listening on the phone (even with headsets) they are so cognitively distracted that they are at risk for driver mistakes similar to that of an intoxicated driver.
Given such reports, states are beginning to ban the use of hand-held phones. Unfortunately, efforts in our General Assembly have stalled. As with many public health measures, local authorities can spot a problem before higher forms of government and they may feel that they have the obligation to do the right thing to protect their residents’ health and safety.
Philadelphia City Council is in a position to do just that.
However, some detractors are crying “bad law” claiming that only the state has the authority to regulate driving rules and local municipalities cannot trump state rules. They understandably note that this would create a “patchwork” of laws causing confusion, unknown expectations for drivers, and as a practical matter that the rogue local ordinance will not likely be enforced. The legal, even Constitutional, principle here is known as preemption: Higher government authorities have the right to preempt laws of lower authorities when there exists a compelling reason.
This is true, but these detractors offer select principles of the Constitution as arguments against such a local public safety measure. It can be argued that both state and local governments are given broad “police powers” in the Constitution to protect the health, safety, and welfare of the people. This is where states and local governments draw authority to invoke public health and safety measures—in the reserved powers. There is much precedent for government as a protector of public health. Historically local authorities have wide latitude and authority for protecting their public’s health and safety. This precept is part of our ideology and holds that those at the local level (in this case Philadelphia officials) are in the best position to protect the health and safety of the citizenry.
Pennsylvania state policy makers, unfortunately, are waiting to hear more about epidemiological studies of the risk of driving while using hand-held phones, however nuanced, before enacting a statewide ban. Asking for "overwhelming evidence" from safety and health officials that driving while under the distraction of a phone is problematic before enacting measures shows an ignorance of public-health policy. Public-health policy reacts to not only evidence beyond a reasonable doubt; it must also be prudent when faced with reasonable and common sense evidence of a health threat.
Therefore, municipalities such as Philadelphia have every right to pass a ban on the use of hand-held phones to reduce driver distractions. This is common sense and good local public health and safety law. These municipalities have a compelling reason to act and should not have to wait for state policy makers to decide.