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The Honolulu Advertiser
Posted on: Sunday, May 17, 2009

Cell-phone law not strict enough


By Jay Fidell

Hawaii news photo - The Honolulu Advertiser
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Cell phones are better every day so good that we get glued to them in the car. This causes accidents, and it led to the city's cell-phone ban, Act 09-6.

As much as I question the politics and rue the thought of sitting in traffic unable to make a call, for safety's sake I'm glad the council passed Act 09-6.

The act goes further than the bill against texting and video games that the mayor vetoed in February. But actually it doesn't go far enough.

STILL DISTRACTED

The research on multitasking tells us that the human brain is inefficient for multitasking. We think we can multitask, but we really can't pay attention to more than one thing at a time. This is especially so for young people.

Using a cell phone distracts a driver. It's not the only thing that does that listening to the radio, eating or talking to passengers, pets and potholes, can also distract you. But we know that cell phones often cause accidents.

And hands-free devices, such as speaker phones and headsets, can be distracting, too. The National Safety Council found that drivers using cell phones have as many accidents with hands-free devices as without.

It's not so much operating the phone as the conversation itself that distracts drivers. But Act 09-6, with its hands-free exception, criminalizes holding the phone, not the call. That exception is therefore a cop-out, as they say.

CONDITIONAL BAN

Act 09-6 outlaws "using" cell phones while driving, and then defines "using" as "holding." This will help the police in enforcement all they have to do is see you holding the phone, whether you're on a call or not.

It's like possession of drugs you're guilty even if there's no evidence that you actually "used" the drugs. But Act 09-6 is problematic even if you were on a call, you're not guilty if you weren't holding the phone.

It would have been better to outlaw the use of cell phones unconditionally and then make holding the phone presumptive evidence of use. That would make any use a violation and avoid the enforcement problems HPD worries about.

For Act 09-6, the key is not to hold the phone.

HOLDING THE PHONE

Hands-free devices let you make a call without holding the phone. But if you hold the phone, and dial anything but 911, you've violated Act 09-6.

You can get a bracket that fastens the phone to the dash so you don't have to hold it. The bracket holds the phone while you dial. Google "cell phone brackets" and you'll see lots of brackets. Happily, I found that my Garmin GPS bracket will also hold a phone.

But none of these devices will avoid the distraction of the call itself.

LEGAL DYNAMICS

Act 09-6 is not the end of it. Various bills limiting cell-phone use have failed in the Legislature. Maybe the Legislature or another county will pass such a bill next year.

A state law is probably more appropriate. It will go beyond the state's existing inattention to driving statute, and will pre-empt Act 09-6.

In 2004 a San Francisco law firm settled a $30 million suit in which one of its lawyers killed a pedestrian during a business call. This and other cases, including one in which the state of Hawai'i paid $2.5 million for an employee cell-phone accident, have raised a new vicarious liability for employers.

Employers, maybe yours, are adopting company cell- phone bans. They know they can be liable for employee inattention whether or not bans like Act 09-6 are violated.

GET USED TO IT

Whatever its politics or popularity, Act 09-6 is effective July 1. You may not realize how many calls you make driving, or how dependent you are on them, but you're going to have to develop new habits.

HPD will give warnings, but they'll start ticketing soon enough to keep their PR campaign going, to distract us from our appalling traffic problems, and of course to make a few bucks for the city.

The police should also document accidents caused by cell-phone calls, legal or not. Act 09-6 will probably need to be tuned up, or turned up. If I'm right, the next step will be to further reduce accidents by covering all cell-phone calls.

The act is a message for us to be careful about using cell phones in the car. Make your calls later, when they won't distract you. Do it for yourself, and your boss.