As of June 10, 2010, Washington State has a new cell phone law. The publicity surrounding this law has mainly focused on the fact that the new law changes cell phone violations from a “secondary offense” for which a police officer may not stop you, to a “primary offense” for which a police officer may stop you and give you a ticket. However, some of the details of this law have not received much publicity. For instance, you can still make a call using your cell phone while driving so long as you don’t hold the phone to your ear. Specifically, the law (RCW 46.61.667) states: “a person operating a motor vehicle while holding a wireless communication device to his or her ear is guilty of a traffic infraction.” Therefore, under the law it is legal to place your cell phone into speakerphone mode, hold it in front of your face, and make the call. How is this less dangerous than holding the phone to your ear?

The law states that it is illegal to send, read, or write a text message while driving. However the term “text message” has no definition in the statute. This term is generally understood to mean SMS messaging, as opposed to an e-mail message delivered via Blackberry or Microsoft Exchange messaging systems. No Washington State court decision has interpreted this term to date.

The politicians have stated that this law is all about public safety, just like the Washington State DUI laws, but is this really the case? The Washington State Department of Licensing states on its web site that a driver talking on a cell phone is as impaired as a drunk driver with a reading of 0.08 blood alcohol. The DOL also says on its website that a driver who is texting poses the same danger as a drunk driver who is twice the legal limit -0.16 blood alcohol. We all know that Washington State DUI laws are among the toughest in the nation, designed to address the danger posed to the public by drunk driving. The penalty for a DUI conviction with a breath test reading of 0.08 will include license suspension, mandatory jail, mandatory fines, mandatory probation, and alcohol classes. A DUI conviction stays on the record for life and it is reported to the driver’s insurance companies via department of licensing records (resulting in “high risk” insurance for DUI drivers.) In contrast, the new cell phone law specifically states that a cell phone ticket will not go on the driver’s record, and it will not be reported to insurance companies. Moreover, the fine is $124.

If cell phone driving is as dangerous as drunk driving, then why is the penalty a mere $124? Also, if cell phone drivers are more dangerous than other drivers, then why is a cell phone ticket not reported to the driver’s insurance company? The end result is that safe drivers will wind up bearing the increased insurance cost brought about by the risky conduct of cell phone law violators, if the danger posed by cell phone use is truly equivalent to drunk driving.

The ultimate question is this: Is the new cell phone law really about public safety, or is it actually about revenue collection?

The new cell phone law will undoubtedly result in drivers in Seattle and other places in Washington state being stopped by police and if alcohol is smelled, a DUI investigation and arrest. The validity of the initial detention is always a key issue in a DUI case. Fox Bowman Duarte can be reached at (425) 451-1995.