Cell Phones, Traffic Fatalities, and How the Law Works

Michael GrossmanDecember 16, 2015 8 minutes

The National Highway Transportation Safety Administration (NHTSA) made a startling announcement last week that, if trends for the first half of the year hold for the remainder of the year, the United States may experience an 8% spike in traffic fatalities. This comes on the heels of several years of flat or declining numbers of victims on our nation's highways. It appears that lower gas prices and an overall increase in traffic are behind a fair portion of the increased deaths; The blame for the rest seems to rest with the increased use of mobile devices, both while driving and while walking. Interestingly, while it becomes clear that mobile device usage is becoming an increasingly common and deadly menace on our roadways, the legal penalties for driving while using a cell phone lag far behind other dangerous behaviors such as drunk driving.

I realize how shocking it is to equate drunk driving with cell phone usage. We generally think that drinking and driving is only engaged in by reckless, selfish people, while phones are harmless devices, which all of us use throughout the day. However, that perception does not comport with most scientific research. For instance one study, among many like it, has found that texting while drivers who are texting while driving have reaction times that are three times longer than that of drunk drivers. Yet, as mentioned before, how we as a culture look at people who use mobile devices while driving is far different from how we look at drunk drivers.

One only has to look at the difference in penalties in Texas for driving drunk versus those for using cell phones while driving to see just how different we view those two dangerous behaviors. For first-time drunk drivers, Texas law has penalties of between 3 and 180 days in jail, a fine of up to $2,000, and drivers license suspensions ranging from 90 to 365 days. What's the Texas law regarding cell phone use while driving? If you are over 18, there isn't one. While more than two dozen jurisdictions within the state have passed their own laws restricting mobile device use while driving, the state as a whole only forbids the use of cell phones in school crossing zones.

This illustration is not meant to disparage Texas, but to illuminate a cultural blind spot throughout the country. Even in states like New Jersey, which have far more restrictive laws for using mobile devices while driving, the penalty for a first offense can be a fine between $200 and $400. Even the progressive vanguard of our republic, California, only assesses a $76 dollar fine for using a mobile device while driving. There is no state in the country where jail time is a possibility for those who text while they drive. Yet, it would seem almost unconscionable if a state did not have a provision for some jail time in their laws for drunk driving offenses.

If you are still skeptical that using mobile devices while driving is more comparable to drunk driving than most people would like to admit, consider that it is estimated that up to 25% of motor vehicle accidents can be attributed to distracted driving. Just for a frame of reference, 1 in 3 traffic deaths is alcohol related, a rate that has declined significantly over the years due to harsher penalties and changing social attitudes. Certainly, there are many distractions in a car, but many of those technologies have been around for decades, which make it unlikely that they are to blame for the increase in traffic fatalities. If even half of the projected increase in highway fatalities is linked to mobile device related distractions, that would mean that 1300 more people are going to die this year, because folks need to talk/text and drive. Should texting related traffic deaths continue to rise at the same rate, within a few years, those deaths will outnumber alcohol related fatalities.

To get a full sense of how distracting mobile devices can be, one needs only look at the spike in pedestrian traffic fatalities. Despite an overall decline in traffic fatalities last year, the number of pedestrian deaths increased. Similarly, while the NHTSA is projecting a potential 8% rise in all traffic fatalities, pedestrian deaths are expected to jump a startling 10%. The recent surge in pedestrian fatalities has increased the share of pedestrian deaths to almost 15% of all traffic related deaths. There is no evidence to suggest that people are driving more recklessly with regards to pedestrians. Again, the main culprit appears to be a combination of cell phones in cars and mobile device usage by pedestrians. That's right, folks are so engrossed by their mobile devices, they are literally walking out into oncoming traffic.

If you think about it, and if the research about the dangers of operating mobile devices while driving is correct, it illustrates just how significant of an impairment a mobile device can be. No one has any trouble imagining someone stumbling out of a bar so impaired that they walk into oncoming traffic, but that someone could be so distracted by a mobile device to walk into traffic seems harder to believe. Part of the problem might lie in how we perceive danger.

When we drink alcohol, it is pretty obvious that something is off. Curiously enough, drunk people can tell that they are drunk, but the part of their brain that allows them to adequately evaluate how safe certain conduct is shuts off. Nevertheless, the more we drink, the more we are aware that we are not in a normal state of mind. Upon waking up the next day, one is keenly aware of just how different their brain was functioning the night before. On the other hand, when we use mobile devices, we do not feel any different that when we are not using them. In the absence of an obvious physical effect, like intoxication, it may just be harder for people to believe that cell phones could possibly be as dangerous as alcohol consumption in certain activities.

My guess is that it's still uncomfortable to think of alcohol-related accidents and cell phone-related accidents as comparable, in spite of the unbiased evidence that they most likely are pretty similar. I know it's a tough idea for me to fully accept. Part of this can be explained by a phenomenon that sociologists refer to as "cultural lag." Put most simply, cultural lag is the time that passes between the introduction and adoption of a new technology and when society adjusts its values and institutions to properly account for dangers and benefits of the new technology.

To find a really great example of cultural lag, you don't need to look any further than how we look at drunk driving. As recently as 1980, 21,000 people a year were killed in drunk driving accidents. If you go back just a bit further to the 1960s, drunk driving had nowhere near the social stigma that it does today. It was not uncommon for police of that era to tell a drunk driver to "go home and sleep it off," knowing full well that the driver would be driving home. At most, one could see a tepid disapproval of drunk driving in society then, which resembles attitudes towards texting mobile device use while driving today.

During times of cultural lag, people often find it frustrating that the law invariably struggles to keep up with technology. In a world that experiences as much technological change as ours, this frustration is even more acute. This frustration can often lead to people losing confidence in the law. However, when we look at attitudes towards drunk driving in the past and using mobile devices while driving today, it becomes clear that the shortcoming does not lie with the law, but with human nature. It takes time for the culture to properly evaluate the shortcomings of new technologies. This process seems to be even more difficult when that technology is something folks really enjoy using, like cell phones. If the technology does not cause any physical or mental changes, it appears that much more benign.

A common refrain during periods of cultural lag is that "people are dying and no one is doing anything about it." This criticism is directed at people and the law alike, since the goal of advocates who fall into "people are dying" thinking is usually to pass laws to prohibit the dangerous behavior. When it comes to people, this kind of thinking reflects a frustration with human nature, which seems counterproductive since human nature hasn't changed much in a couple hundred thousand years. Where this thinking is particularly dangerous is when it concerns law.

Since most people do not appreciate that the law is just an extension of human nature and the law is incapable of being better than the people who create it, their frustration tends to undermine confidence in the legal system as a whole. Those who refuse to pass laws are "do-nothings" or "in the pockets of special interests." What such critics fail to realize is the truly delicate nature of the law. Even if you were to pass laws tomorrow that made the penalties for using mobile devices the same as the penalties for drunk driving, they would most likely do little to save lives, in the short term at least. The culture as a whole simply is not ready to view mobile devices the same way we look at drunk driving. When a law is passed that a significant majority of the population does not want, people simply don't obey the law. There simply are not enough law enforcement officers, jails, or courts to handle the number of people who would get caught using mobile devices while driving. The cultural dynamic has to change before such a law could truly be effective.

If you think on the matter a bit more, it is readily apparent that cultural lag acts as a telescope that allows us to see the furthest reaches of what law can achieve, regardless of its origin. What I mean by this is that folks often find the slow pace of representative government to be one of its chief defects. For instance, there are those who admire the "Chinese Model" of vast executive authority. When the Chinese need a bridge somewhere, they don't have layers of committees, numerous community meetings, or hours of debate to decide where and how to build the bridge, they order a bridge to be built (That's an oversimplification, but that is how many people perceive the Chinese system.). Similarly, if they were so inclined, the Chinese could make their penalties for operating mobile devices the same as for drunken driving with a Central Committee meeting and the stroke of a pen. The problem is that it would not solve the problem of vehicle fatalities related to mobile device usage.

There is just as much, if not more avoidance of unpopular laws in authoritarian countries as there is in representative republics like ours. Some studies suggest that there is even more, since the proliferation of laws that people view to be illegitimate is even greater, creating a more developed culture of law avoidance. In this light you can see that it doesn't matter what system of government people have, on a certain level people, regardless of where they are, only tend to follow laws that they view to be legitimate. If the substantial majority of society would think it overly harsh to treat the use of cell phones while driving the same as drinking and driving, then no legislation is going to fully change that behavior. We have a limitation of law, regardless of the law's origin, a limitation rooted in human nature.

While it is a tragedy that thousands of people are going to die, unnecessarily, while we wait for the awareness of the dangers of mobile phone use while driving to catch up with the reality of the threat, it is in the law that we can find some comfort. While the criminal code may have not caught up with technology, in the United States we are blessed to have a rather elastic civil code. This means that while drivers who are engaging in dangerous behavior, e.g., operating mobile devices while driving, have what can charitably be described as laughably light criminal liability at this time in many jurisdictions, the flexibility of our civil laws allows victims to recover damages from those who harm others while engaged in dangerous behavior.

Certainly, it would be better if these accidents did not occur in the first place, but at least there are some tools available to victims of reckless mobile device use to hold perpetrators accountable. So for anyone frustrated by the law's slow pace when it comes to recognizing the dangers of a particular danger, like mobile device use while driving, they can take comfort that other well established principles, such as holding people responsible for the damage they inflict on others are already part of our legal landscape. Ultimately, while cultural lag may be one of the more unfortunate blemishes of human nature, self-inflicting unnecessary wounds, the combined wisdom of generations, as embodied by our civil law stands as both a balm to those wounds and monument to our sagacity.