BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 28|
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THIRD READING
Bill No: SB 28
Author: Simitian (D), et al.
Amended: 4/14/11
Vote: 21
SENATE TRANSPORTATION & HOUSING COMMITTEE : 6-3, 3/29/11
AYES: DeSaulnier, Kehoe, Lowenthal, Pavley, Rubio,
Simitian
NOES: Gaines, Harman, Huff
SENATE APPROPRIATIONS COMMITTEE : 5-1, 4/11/11
AYES: Kehoe, Alquist, Pavley, Price, Steinberg
NOES: Walters
NO VOTE RECORDED: Emmerson, Lieu, Runner
SUBJECT : Driving or bicycling while using a wireless
communications
device
SOURCE : Author
DIGEST : This bill increases the penalties related to
using a wireless communications device while operating a
vehicle, prohibits bicyclists from using a handheld
communications device while riding a bicycle, establishes
an education program regarding the dangers of talking or
texting using a wireless communications device while
driving, and adds dangers of talking or texting while
driving to the list of items that the Department of Motor
Vehicles (DMV) must include in an examination for a
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driver's license.
ANALYSIS : Existing law prohibits, with some exceptions,
a person from using a handheld wireless phone or engaging
in text-based communication (e.g., text messages, instant
messages, or email messages) while operating a motor
vehicle. The base fine is $20 for an initial offense for
either violation and $50 for each subsequent offense.
After all penalty assessments, fees, and surcharges are
added to the base fine, the total bail for a base fine of
$20 is $208 and the total bail for a base fine of $50 is
$328. These two violations are primary offenses such that
a law enforcement officer may stop a driver who he or she
has cause to believe is violating these laws. No points
are assigned to the license of a driver who is convicted of
either infraction.
With regard to drivers under the age of 18, existing law
prohibits, with some exceptions, a driver from using any
wireless communications device while operating a motor
vehicle, without regard to whether the device is hands-free
or handheld. The base fine for an initial offense is $20
($208 total bail) and $50 ($328 total bail) for each
subsequent offense. While use of a handheld cell phone for
talking while driving remains a primary offense for drivers
under the age of 18, using a hands-free device or engaging
in text-based communication on any mobile service device,
is a secondary offense, meaning that a law enforcement
officer may not stop a driver solely for the purpose of
determining whether or not the driver is violating this
law. No points are assigned to the license of a driver who
is convicted of this infraction.
Existing law requires the examination for a driver's
license to include specified elements, including:
A test of the applicant's knowledge of laws regarding the
operation of vehicles,
A test of the applicant's ability to read and understand
simple English used in highway traffic and directional
signs,
A test of the applicant's understanding of traffic signs
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and signals,
An actual demonstration of the applicant's ability to
exercise ordinary and reasonable control in operating a
motor vehicle, and
A test of the applicant's hearing and eyesight, and of
other matters that may be necessary to determine the
applicant's mental and physical fitness to operate a
motor vehicle.
Existing law assigns violation point counts to convictions
of specified violations of the Vehicle Code. Most moving
violations, such as speeding, causing a traffic accident,
or failing to restrain a child properly, are considered an
infraction and subject to one violation point. More
serious offenses are given a value of two points.
Two-point violations include leaving the scene of an
accident, driving under the influence of drugs or alcohol,
reckless driving, evading a police officer, crossing the
line on a divided highway, transporting explosive material
without a proper license, engaging in speed contests, and
"excessive speeding", which is defined as driving 100 mph
or more.
A person whose driving record shows a violation point count
of four or more points in 12 months, six or more points in
24 months, or eight or more points in 36 months is presumed
to be a negligent operator and DMV shall either suspend or
revoke his/her driver's license.
This bill:
1. Adds a test of a driver's understanding of the
distractions and dangers of handheld cellular telephone
use and text messaging while operating a motor vehicle
to the list of items that DMV must include in its
examination of a person who is applying for a driver's
license.
2. Increases the total fine from $20 ($208 total bail) to
$50 ($328 total bail) for the first offense and from $50
($328 total bail) to $100 ($528 total bail) for any
subsequent offense of driving while using a handheld
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wireless communications device to talk or text, or if a
person is under the age of 18, using any wireless
communications device.
3. Specifies that a person shall not drive a motor vehicle
while using an electronic wireless communications device
to write, send, or read a text-based communication,
unless the electronic wireless communications device is
specifically designed and configured to allow
voice-operated and hands-free operation to write, send,
or read a text-based communication, and it is used in
that manner while driving.
4. Provides that a point shall be assigned to a driver's
license for a second or subsequent conviction of driving
while using a handheld wireless communications device to
talk or text or, if a driver is under the age of 18,
using any wireless communications device for any
purpose. This point does not apply to a bicyclist who
is convicted of using a handheld telephone while
cycling.
5. Allows for primary enforcement of a violation of using
any wireless communication device while driving for
drivers under the age of 18.
6. Prohibits a bicyclist from riding a bike while using a
handheld wireless communication device to talk or text.
In doing so, the bill establishes a total fine of $20
for an initial violation and $50 for any subsequent
violation. This amount will be the total amount
collected and will not include any other penalties,
assessments, surcharges, or fees.
7. Establishes the Distracted Driving Education Fund in the
State Treasury and requires county treasurers (a) to
submit to the State Controller $10 from each fine
collected for driving while using a handheld wireless
communications device to talk or text or, if a driver is
under the age of 18, using any wireless communications
device for an education program on the dangers of
cellular telephone use to talk or text while driving or
(b) may withhold a sufficient amount from each fine
collected under Sections 21213 and 21213.5 to reimburse
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the courts in the county for their actual, reasonable,
and necessary costs associated with processing
violations of Sections 21213 and 21213.5.
Comments
Trends . The prohibition against talking using a handheld
telephone while driving went into effect on July 1, 2008
and the probation against texting while driving went into
effect on January 1, 2009. For purposes of this comment,
these two laws will be referred to as the "cell phone
laws." Table 1 below displays data that describe trends
regarding the number of fatal and injury collisions, the
number of persons involved in fatal and injury collisions,
and the number of persons involved in fatal and injury
collisions were cell phone use was a factor from 2005 to
2010. As Table 1 suggests, there is a significant downward
trend in the number of collisions and number of persons
involved in collisions, including when cell phone use was a
factor.
Table 1
Changes in the Number of Fatal and Injury Collisions
between 2005 and 2010
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| | 2005 | 2010 | Percent |
| | | | Change |
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|-----------------+------+------+------+------+------+------|
| |Fatal |Injury|Fatal |Injury|Fatal |Injury|
| | | | | | | |
|-----------------+------+------+------+------+------+------|
|Total number | | | | | | |
| of collisions |3,822 |198,70|2,482 |43,517|- 35 |- 78 |
| | |8 | | |% |% |
|-----------------+------+------+------+------+------+------|
|Number of | | | | | | |
|persons involved |7,066 |405,91|4,638 |88,017|-34 % |-78 % |
|in collisions | |4 | | | | |
|-----------------+------+------+------+------+------+------|
|Number of | | | | | | |
|persons in |8 |623 |3 |97 |- 62 |-84 |
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|collisions, cell | | | | |% |% |
|phone use a | | | | | | |
|factor | | | | | | |
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To gain a sense of whether the decrease in the number of
persons involved in collisions where cell phone use was a
factor was due to a natural decrease in the number of
persons involved in collisions or to some other factor, the
percentage of persons involved in fatal and injury
collisions as a percentage of the total number of persons
involved in collisions may be calculated for the two years
immediately preceding the cell phone law and the two years
following it.
Table 2
Persons Involved in Collisions where Cell Phone Use was a
Factor
as a Percentage of Persons Involved in Collisions
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| | 2006-2007 | 2009-2010 |
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|----------------------------+------+--------+------+------|
| |Fatal | Injury |Fatal |Injury|
| | | | | |
|----------------------------+------+--------+------+------|
|Persons involved in | 15 | 1189 | 10 | 431 |
|collisions, cell phone use | | | | |
|a factor | | | | |
|----------------------------+------+--------+------+------|
| | | | | |
|Persons involved in |13,700|1,364,05|9,816 |420,04|
|collisions | | 5 | | 0 |
| | | | | |
|----------------------------+------+--------+------+------|
|Persons involved in | | | | |
|collisions where cell phone |.11 % | .09 % |.10 % |.10 |
|a factor as a percentage of | | | |% |
|total number of persons in | | | | |
|collisions | | | | |
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As the results in Table 2 suggest, there has not been an
appreciable decrease in the number of persons involved in
either fatal or injury collisions where cell phone use was
a factor as a percentage of the total number of persons
involved in a collisions after the cell phone laws went
into effect. It is important to note that because this
analysis did not look at the cell phone laws specifically
or consider other factors such as the growth in the number
of persons using cell phones over the same period of time
or the reduction in vehicle miles traveled during the
economic recession, these results should be interpreted
with caution; they are intended only to show trends over
time of collisions rates involving cell phones.
Prior legislation . With two exceptions, this bill is very
similar to SB 1475 (Simitian), which passed the Senate
(21-16) on June 3, 2010, but died in the Assembly
Appropriations Committee. The first difference between
this bill and SB 1475 is that the violation point assigned
to a driver's license for a violation of talking or texting
while driving only applies for a second or subsequent
conviction, rather than for the first as was the case in SB
1475. The second difference is that this bill clarifies
that texting is permitted while driving provided the driver
is using a "voice-operated, hands"-free device." This
language was added to the bill at the request of automobile
manufacturers that are developing vehicles with technology
that enables drivers to speak a message that is then
translated into text.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
According to the Senate Appropriations Committee:
Fiscal Impact (in thousands)
Major Provisions 2011-12 2012-13 2013-14 Fund
Penalty revenues unknown increase in penalty
revenuesVarious*
DMV: license exam minor costs, if any, to include
specific Special**
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Education program funds unknown revenue gains from
fines collected Special***
for use by OTS for education program
Courts: programming costs unknown costs, in the range
of $150-$300 General
Local mandate likely minor costs to county
treasurers, General
potentially reimbursable
* General Fund, various special funds, and local funds,
pursuant to statutory formulas
** Motor Vehicle Account
***Distracted Driver Education Fund (created by this bill)
SUPPORT : (Verified 4/14/11)
California Bicycle Coalition
Consumers for Auto Reliability and Safety
Driving School Association of California, Inc.
Metropolitan Transportation Commission
Traffic Safety Consultants, Inc.
Verizon Wireless
OPPOSITION : (Verified 4/14/11)
Taxpayers for Improving Public Safety
ARGUMENTS IN SUPPORT : The author contends that the laws
regarding the use of wireless communications devices while
operating a motor vehicle have been effective, but that
compliance could be improved if stronger penalties were
established. These efforts to reduce distracted driving
would be further strengthened by establishing an education
program designed to inform drivers of the risks of talking
and text messaging using a wireless communications device
while driving.
ARGUMENTS IN OPPOSITION : Taxpayers for Improving Public
Safety states:
"There are numerous concerns over SB 28, including two
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constitutionally fatal flaws with respect to a protected
form of speech and equal protection, stemming from flawed
assumptions by previous legislation upon which SB 28's
conclusions are premised.
"The first concern is over cause and effect, and whether
or not this legislation is necessary as a legitimately
effective means of improving public safety through a
reduction in traffic collisions.
"Earlier this year, the Insurance Institute for Highway
Safety (IIHS), released its findings from a multi-year
meta-analysis of collisions, which reviewed multiple
jurisdictions with anti-cellphone laws for drivers
(including California), and control group jurisdictions
without such laws. The evidence from that multi-state
study shows that California's anti-cellphone laws for
driver have had a statistically insignificant influence
upon the rate and severity of collisions, despite a
quantifiable reduction in drivers' illegal use of mobile
phone devices.
"The reason for the insignificance of hands-free use
versus hands-on use is attributed to the fact that the
manner in which the cellphone is used is irrelevant,
because it is the conversation itself that distracts
drivers and contributes to collisions. Therefore, the
approach taken by SB 28 and previously related
anti-cellphone legislation appears to be based upon
erroneous conclusions, and seeks to address a mere
symptom - but not the cause - of behavior which leads to
collisions and thereby adversely impacts our level of
public safety.
?
"The second concern, and one which perhaps ought to be
fleshed out in a judiciary committee, is that SB 28 and
Vehicle Code §23123 are unconstitutionally overbroad in
their application to limiting protected speech. The
United States Supreme Court has consistently held that
First Amendment protections may be limited by government
when there is a compelling interest to serve the greater
good (such as improving public safety). But the reason
must not be based upon shoddy evidence; the restriction
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must be so narrowly tailored with respect to time, place,
and manner so as to accomplish the goal without going any
further; must of course be content neutral; and is
necessary to promote the goal which would be less
effectively achieved absent the regulation."
RJG:mw 4/14/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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