We all know, or at least should know, that you're not allowed to text while driving.. We also know, or should know, that you're not allowed to make telephone calls while driving unless you're using a hands-free device. Good rules, and definitely the law in California. Indeed, we should ticket people for violating these rules more than we do, IMHO.
But what about using your smartphone to surf the internet? Is that also impermissible?
Here's the answer.
The Appellate Division of the Superior Court of Fresno decides, in a published opinion, that the answer is yes. You could potentially reach that result in one of two ways. First, you could believe -- rightly, in my view -- that the dangers of distracted driving are at least as great when you're surfing the internet as when you're texting or talking on the phone. So interpret a statute accordingly. You could alternately hold that the plain meaning of the statute clearly covers surfing the internet on a phone. The Appellate Division takes the latter approach.
That's certainly a plausible way to interpret the statute. Here's what Section 23123(a) of the Vehicle Code has to say about the matter: "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." Since you're "using a wireless telephone" when you're using your phone to surf the internet and are not "us[ing it] in [a hands-free] manner" when you're doing so, the Appellate Division concludes that you should get a ticket. QED.
Let me nonetheless point out two problems with this interpretation. Neither of which the Appellate Division adequately addresses. (To be clear, I'm not necessarily blaming the A.D, which did not likely have awesome briefing on this issue, since the ticketed person represented himself and the People didn't even appear. But I do think the issue is important, and pervasive, enough to get right.)
First, I'm not convinced that the statutory language is as clear as the A.D. sees it. In particular, there's part of the statute that the A.D. doesn't even talk about -- the portion that refers to "using a wireless telephone" -- that could easily be interpreted a different way.
Imagine that your wireless telephone is powered off, but while holding it in your hand you turn on your car radio with its corner. Or you use it to "drum" the beat to your favorite song on your steering wheel. Does the statute make those uses illegal? I strongly doubt it. It seems to me that even though you're "using" your telephone in those examples, you're not using it as a telephone. Which is what the statute prohibits and what gives rise to the dangers of distracted driving. Someone who's using a smartphone to surf the internet could make a similar argument; i.e., that the phone wasn't being used as a phone, and hence the statute doesn't apply.
That's a good "lawyerly" parsing of the statute, and might perhaps be right as a technical matter. Though I forthrightly doubt that most judges would, standing alone, find it persuasive.
But see if the legislative history of the statute changes your mind. The author of Section 23123 expressly stated that it applied only to "holding a cell phone up to [one's] ear." Which you're not doing unless you are, as suggested above, using a telephone as a telephone. Moreover, the official legislative history of a statute subsequently passed in order to address the limitation of Section 23123 -- Section 23123.5 -- could not have been clearer when it said that drivers legally "could use a hand-held device to surf the internet" under existing California law despite the fact that the new law made it illegal to text.
Those are darn good reasons to believe that the Legislature did not intend Section 23123 to apply to surfing the internet, eh? After all, not only did they expressly say so, but phones generally weren't even capable of doing so back then. They seemed to be addressing only the use of phones as phones.
Mind you, I think it should be illegal to surf the internet while driving. It's distracting. It can cause you to kill someone. I'd be in favor of such a law. Just as I think that texting while driving should be both illegal as well as seriously enforced in every state.
But in light of both the structure and legislative history of California's statutes, I'm just not sure that our laws in fact do so. So when the Appellate Division says that concerns about the statute are properly directed to the Legislature, I think that argument may actually go the other way. The Legislature should be persuaded to pass a statute that clearly outlaws surfing while driving. Rather than having the courts interpret an unclear law that the Legislature thought did not cover the practice so that it does.
One final point. The driver here was using his smartphone to look at a map that he had pulled up on the internet (e.g., MapQuest, Google maps, etc.). Does anyone else find that ironic? In the old days, the guy would have pulled out a huge paper map -- potentially blocking his view -- and been fine. But while he can still look at a paper map, under the Appellate Division's view, if he looks at the same map on the screen of his smart phone, that's suddenly a violation. Weird, eh? Hardly makes sense.
Given the dangers of distracted driving, personally, I'd be more than happy for both of these map-viewing preferences to be made illegal. Particularly since, in the modern era, lots of smartphones allow "hands-free" map functions; i.e., verbal turn-by-turn directions. But it just seems bizarre to interpret a statute to prohibit only viewing computer-generated maps but not paper maps. Particularly when, as here, there's ample reason to believe that that's not what the Legislature actually did.
But fair warning: The Appellate Division thinks they did. And that's presumably how police officers will be instructed as well. So you can get a ticket when you use your cellphone to surf the internet or look at a map while driving.
Consider yourself warned.
P.S. - Coincidentally, my next act will be for me to get out my smartphone and boot up driving directions from San Diego to L.A. for this, and hope that traffic doesn't make me late. But fear not. It's hands-free. (Though only because my wife will be reading the directions for me.)
