Like Duh, Selfies While Driving Are Legal

With cell phone in one hand, steering wheel in the other, I started the engine and began my day’s journey. Having exited the parking lot of the gym I frequent, I no sooner approached the nearest intersection when my attention was drawn to the rearview mirror–and in it, the reflection of flashing lights.

As I navigate my car to the nearest curb and await further instructions, I begin to review my recent actions. Had I been speeding? I knew that I had not. Illegal turns? No way. With a police officer now arriving at my driver side window, I neverously looked down, but yes, even my seatbelt was buckled.

“Do you know why I pulled you over?”

I replied that I had not one clue, but in that instant I realized that those words were no longer true. There, still in my hand from the moment I left the gym, I carried the smoking gun of my transgression: my cell phone.

This was a situation with which I had become all too familiar, as I had twice been previously cited for this violation of being too connected. A contradiction to modern day life enforced with increasing penalties, I pleaded with the officer not to write me up—especially since I was neither texting nor talking on the phone. I was, in all honesty, looking at directions to my next destination. However, in one ear and out the other, the officer ripped a paper from his perforated pad and handed me my ticket, stating simply “no cell phones while driving.”

In a day and age where technology is at our fingertips, it has always struck me as odd that laws require our interaction in cars with the piece of technology that manages our lives–our mobile phones–to be fingerless. Why is it that had I been using a cumbersome Thomas Guide to check directions, I would be in violation of no laws, but because I used my phone’s native map application, I must pay a fine?

As if hearing my pleas for justice, a case in California recently addressed this issue, and it’s ruling changed this, but perhaps not for the better. The case, People v. Spriggs4, is notable not for its facts but for the analysis the court applied to a California law that prohibits drivers from “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.”5 Almost exactly like my situation but involving a person with more time on his hands, the defendant-driver in Spriggs was cited for violating this law because he was using his phone’s GPS to check directions, and, saving you the procedural details, he appealed this citation all the way to the California Court of Appeals who, in accepting the appeal, directed the parties to address the following question: “whether a person driving a motor vehicle, while holding a wireless telephone and looking at or checking a map application on the wireless telephone, violates Vehicle Code section 23123.”

The following summarizes the basic arguments from both sides on that question:

  1. Spriggs: no, looking at a map application does not violate the statute because “using the telephone” within the meaning of the statute appliesonly to a driver’s use of the telephone to conduct phone or text conversations.
  2. California: yes, looking at a map application does violate the statute because the statute’s meaning of “using the telephone” is much broader and applies to all uses of a wireless telephone unless the telephone is used in a hands-free manner.

A matter of statutory semantics hinging on the meaning of a single word, the appellate court concluded that the statute “is reasonably construed as only prohibiting a driver from holding a wireless telephone while conversing on it.” Relying heavily on the statute’s legislative history and the legislature’s inclusion of “hands-free listening and talking” in the statutory language, the Court stated that “it is apparent that the Legislature both understood and intended the statute be limited to only prohibit a driver from holding a wireless telephone while conversing on it.”  Moreover, the Court found that the State’s interpretation of “using” would lead to absurd results not intended by the legislature such as, using the Court’s example, picking up a phone to “look at the time” or “move it for use as a paperweight.”

What Does “Using” A Telephone Really Mean, Nowadays?

A reader could reasonably presume that I would be in favor of this ruling based on how I began this article, but the breadth of this ruling goes far beyond just my original concern of being able to use my phone to check directions. It has been conclusively proven that the human brain is far from a proficient multitasker, yet by finding that the California legislature (and by extension the law itself) intended only to prohibit drivers from using a mobile phone to talk or text, the Court has opened the door for a range of other activities to be legally performed while driving, including selfies while driving, online shopping while driving, and even watching movies while driving.6

While statistics on the number of accidents related to mobile-phone related distractions demonstrate this decision gives cause for worry, I do not blame the Court for reaching the result it did. Rather, responsibilty for the outcome should lie with the California legislature for its failure to adapt laws to keep pace with the rate which technology is progressing. In coming to its ruling, the Court weighed heavily that, in the California Senate and the California Assembly versions of the legislation that eventually became § 23123(a), “[t]here is no mention in the legislative history of trying to prevent distractions that arise from other uses of a wireless telephone when driving, such as looking at a map application while holding the telephone.”

So did the legislature drop the ball in enacting these laws? Not initially. The legislative hearings that the Court leaned on to make its decision took place in 2006–a pre-iPhone era where PDAs reigned supreme. Thus, while the legislature was rightfully concerned about phone and text conversations occurring while driving by the 82% of Americans adults whom had cell phones at the time, the functionality that the Court cites as not being the focus of the 2006 Legislature–looking at a map application while holding the telephone–was of a type that almost 100% of people did not possess in their pocket.

Nor, in fact, can the Legislature be blamed for lacking foresight when, even as of 2010, only 17% of American adults possessed smartphones.

However, with the number of smartphone-owning Americans doubling to 35% in 2011 and now currently sitting at 58% of American adults, the Legislature can be faulted for failing to update the laws as these phones and their capabilities have become more commonplace. Smartphones act as more than mere communication devices and, while talking and texting are certainly still primary uses of these phones, they are far from the dominant uses. Yet, with this ruling, the current California law protecting drivers on the streets and highways from distraction caused by mobile phones is now being defined by a legislative history almost a decade old, and I feel a little less safe on the road knowing that the driver next to me might be Candy Crushing and that’s okay in the eyes of the law.

  1. People v. Spriggs, 215 Cal.App. 4th 1 (2013).

  2. See California Vehicle Code § 23123(a).

  3. A driver performing these activities can still be pulled over for reckless driving, especially if watching movies while driving.

  4. People v. Spriggs, 215 Cal.App. 4th 1 (2013).

  5. See California Vehicle Code § 23123(a).

  6. A driver performing these activities can still be pulled over for reckless driving, especially if watching movies while driving.

AJ Afkari | techlawgic

A.J. Afkari is a Los Angeles attorney who specializes in legal matters related to the Internet, technology, and all things intertwined. He received his B.A. from UCLA, his J.D. from USC, and his A.J. from his mother.

1 Comment Leave a reply

  1. Nelle
    Permalink to comment#

    It’s good to see someone thkiinng it through.


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Like Duh, Selfies While Driving Are Legal | techlawgic