Does a Ban on Driving While “Using a Wireless Telephone” Prohibit Driving While Looking at a Map on a Smartphone?
Here’s an interesting question of statutory interpretation raised by the invention of smartphones. California law bans using cell phones while driving as follows:
A person shall not drive a motor vehicle while using a wireless telephone unless that telephone is specifically designed and configured to allow hands free listening and talking, and is used in that manner while driving.
In People v. Spriggs, the defendant was cited under this provision for looking at a map on his cell phone while driving and holding the phone in his hands. But was this “using” the phone for purposes of the provision? Or is this merely using the device that happens to also include the functionality of a phone? In other words, does the legal prohibition follow the physical device or just the app?
The Court concludes that looking at the map is a prohibited use of the phone:
Our review of the statute?s plain language leads us to conclude that the primary evil sought to be avoided is the distraction the driver faces when using his or her hands to operate the phone. That distraction would be present whether the wireless telephone was being used as a telephone, a GPS navigator, a clock or a device for sending and receiving text messages and emails.
The Court reaches the same result after looking at the legislative history:
[T]he legislative history . . . focuses on the distraction a driver faces when using his or her hands to operate the phone, specifically including “the physical distraction a motorist encounters when either picking up the phone, punching the number keypad, holding the phone up to his or her ear to converse, or pushing a button to end a call.” That distraction would be present whether the phone is used for carrying on a conversation or for some other purpose.
The defendant makes a pretty strong response to this, though. A subsequent section of the code prohibits driving while using “an electronic wireless communications device” to write, send, or receive text messages. The subsequent section shows that the legislature meant to distinguish between phone calls and specific uses of “electronic wireless communications devices.” Otherwise, sending or receiving text messages over smart phones would already be prohibited, and the latter section would be unnecessary. Indeed, the legislative history shows that the proponent of both sections in the California legislature understood that the subsequent section was needed because the first section only applied to use of a telephone up to a person’s ear. But the court rejects this argument based on its reading of the legislative history of the first section:
There is, however, no evidence in the legislative history of [the bill banning using a wireless telephone while driving] that would support the conclusion that those who voted in support of that bill, including its author, understood or intended the bill to be so limited in its application when it was passed. To the contrary, the legislative history set out above suggests that the bill was designed to prohibit the “hands-on” use of the phone while driving, without limitation.
This strikes me as very puzzling kind of statutory interpretation. As a matter of text, the natural way to harmonize the two sections is to say that the ban on “using a wireless telephone” addresses using the telephone functionality of the device, while the specific limitations on uses of “an electronic wireless communications device” address using the non-telephone functionality of the same device. To the extent the legislative history is relevant generally, it doesn’t seem to shed light either way here. The fact that the legislature was worried about distracted drivers in enacting the first ban doesn’t tell us whether the statute enacted should apply to all things that distract drivers or only some things.
By Orin Kerr