Saturday, January 30, 2010

Sharon Montgomery reports Ohio proposed ban on texting while driving for Bexley Public Radio.

Montgomery discusses proposed Ohio legislation with WCRX-LP, 102.1 FM at Bexley lunch spot.

Ohio legislation: Sponsor testimony on HB 415 to ban texting while driving in Ohio.

State Representative Nancy Garland (D, HD 20) packed a lot of statistics and facts into a fairly brief, concise sponsor testimony which she described as a "marriage" of previous bills. The other primary sponsor, Representative Michael DeBose (D, HD 12) allowed the hearing to move forward by simply indicating he had the same reasons for sponsoring this bill.

Three Republican committee members had some comments and questions. If any of these committee members had been stuck on "But do we need a separate law?" no one expressed that opposition again.

Representative David T. Daniels (R, HD 86) thanked the sponsors for bringing the bill forward; he also had concerns about definitions of the devices covered in the bill. He doesn't want the bill to ban a device that truckers use. Daniels described the device as a sort of scanner and computer which usually only operates when the truck is not moving, to be included in the ban. Daniels wants to talk to local groups in his district connected to trucking industry and asked if sponsors would work with them on this. Representative Garland was agreeable to co-operating.

Representative Timothy Derickson (R, HD 53) said he sees the need for this law on a daily basis.

Representative Jeffrey McClain (R, HD 82) asked about dialing a phone. Representative DeBose said this bill allows phone use.

Representative McClain referred to the recent Ohio Supreme Court ruling that law enforcement can't "get into" a driver’s phone and wondered how an officer will know if a driver was dialing or texting.

Ohio Supreme Court decision on warrantless search of cell phone records. State of Ohio vs. Smith.

Representative McClain was referring to the case State of Ohio v. Smith decided by the Ohio Supreme Court on December 15, 2009.

The court’s decision was that a warrantless search of data within a cell phone seized incident to a lawful arrest is prohibited by the Fourth Amendment when the search is unnecessary for the safety of law-enforcement officers and there are no
exigent circumstances.

The facts of the decision began on January 21, 2007, Wendy Thomas Northern was transported to Miami Valley Hospital after a reported drug overdose. While at the hospital, she was questioned by Beavercreek police. Northern agreed to call her drug dealer, whom she identified as . . . Antwaun Smith, to arrange for the purchase of crack cocaine at her residence. Beavercreek police recorded the cell phone conversations between Northern and Smith arranging for the purchase.

That evening, the Beavercreek police arrested Smith at Northern’s residence. During the arrest, police searched Smith and found a cell phone on his person. The arresting officer put the cell phone in his pocket and placed Smith in a cruiser, then searched the scene for evidence. Later, police recovered bags containing crack cocaine at the scene.
While the record does not show exactly when they first searched Smith’s cell phone, at some point police discovered that the call records and phone numbers confirmed that Smith’s cell phone had been used to speak with Northern. There was testimony that at least a portion of the search took place when officers returned to the police station and were booking into evidence the items seized from the crime scene. The police did not have either a warrant or Smith’s consent to search the phone.

After being indicted for cocaine trafficking and several related crimes, Smith moved to suppress evidence obtained from his cell phone. Smith went to trial and was convicted on all charges, after which he appealed his conviction.

Representative DeBose said law enforcement would have to get the phone records to issue their citations.

Representative McClain clarified that would put the burden of proof on the driver and Representative DeBose agreed.

Representative Garland said something I couldn't hear then said they've talked to AAA about this problem.

That court ruling was that a properly-seized phone cannot be searched for stored data like phone call logs without a warrant. It seems to me that the phone wouldn't have to even be seized. Even if the guilty driver erased the logs, the service provider's billing records give call times and the citation would have the time of the traffic stop.

All we need is whatever permission is needed to get the records from the provider and to make that admissible in court if the offender went to court.

In my opinion, if drivers don't want the burden of proof, then their choice is to be safer by not even making a phone call!

Tom Whiteman spoke eloquently to the committee on the spur of the moment at the Senate hearing. He has some background with law enforcement including training. He is going to try to get someone from the Highway Patrol to address this issue.

I will let Representative McClain (and sponsors Garland and DeBose) know that at least one of the several Pennsylvania bills has specific language on the dialing and burden of proof issues.

Representative Garland told Whiteman and me the plan is to give this bill three hearings and then a vote. Chairman Linda S. Bolon (D, HD 1) tries to have the committee every other week. That schedule will make the second hearing on February 9 and the third hearing on February 23 when the committee will make its recommendation for the full House.

Sometimes, one hearing is reserved for proponents (and maybe interested parties) and another hearing is reserved for opponents (and interested parties); sometimes any of those three groups can speak.

I don't know yet who will be able to speak on February 9. I'll try to find out before the hearing notice comes out February 4.

Members had no questions or comments when Representative DeBose's aide and then Representative Joseph Koziura (D, HD 56) gave sponsor testimony on their bills. Unless members have reasons to vote “no” that they just aren't expressing publicly, I'm daring to be hopeful that after twelve years of trying, we might actually get one of these bills to a floor vote. Of course, even if the House passes it, the Senate would get it next and they aren't even showing much interest in their own bill.

New insights

I have had two recent productive phone conversations that gave me more understanding of how all the pieces will eventually have to fit together to make effective, intelligent public policy.

Nancy Crespo, Director of Policy and Legislative Affairs, Ohio Department of Public Safety (ODPS) and I discussed the Ohio Revised Code provisions that require ODPS to provide educational programs. The state funding for these educational programs is allocated for specific topics like seat belts or teen driving.

I had assumed the ODPS, with its focus on traffic safety issues and all the data it collects that identify safety issues, was where the decision-making authority lay but apparently not.

The General Assembly has to allocate money specifically for DWP/T education before ODPS can develop such an educational program. Director Crespo did say she'd talk to Traffic Safety Office Executive Director Tina O'Grady about the “possibility” of any federal money for this kind of education.

This leads right to my other conversation with Brad Bailey. He is a legislative assistant to my Congressman Patrick Tiberi. Baily’s responsibilities include transportation issues.
Baily explained that Congressman Tiberi does not support the House proposal to withhold federal highway funding from states that don't pass texting bans.

Representative Tiberi thinks Ohio is hurting economically already and can't lose any more money. Baily said the Congressman can't really get involved in supporting Ohio's DWP/T bills because one level of goverment doesn't like to tell another how to do business. (I've encountered that explanation before.)

We didn't talk much about the other federal bills because I was trying to drum up support for the bill to withhold money if Ohio doesn't ban this.

Seems to me that a penalty for not enacting a ban is more of a motivator than rewarding a state when it enacts a ban.

After talking with ODPS, I see the value of the bills to provide federal money (grants to states who pass the bans; grants to NHTSA) for education campaigns, research, & data collection.

Bailey explained how funding is handled. The House transportation and infrastructure committee authorizes funding amounts for transportation programs; the House ways and means committee then authorizes the source of the moneys to be used. Congressman Tiberi is a member of the House ways and means committee.

Congressional legislators who want to, can't pass the buck from laws to just education. They have to pass a law at least to allocate education money. If they pass a ban, they might even eventually get some help finding some of that money.


John Gideon, vice president of Consider Biking, and one of our supporters and probable witnesses, sent me the New York Times article about the Pennsylvania House passing one of its bills. The legislation will make using a handheld phone a primary offense. This was a "preliminary approval" by the whole House with another vote coming. I don't know what the deal is with two votes.

Brad Bailey sent me the US Department of Transportation press release about prohibiting truck & bus drivers from DWT.

Kurt Weiland of Bexley Public Radio suggested I contact Ohio Insurance Institute to learn that industry’s interest. He also gave me contact names.

My Gahanna Council member gave me the e-mail address for a group called WebSafety that helps parents keep their kids safer using Internet and cell phones. I'll see if they might be of some help.

Hope to see many, many of you at the State House for the hearings on February 9 and February 23.

Sharon Montgomery

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Design is copyright 2010. All rights reserved. Bexley Public Radio Foundation. Text is copyright 2010. All rights reserved. Sharon Montgomery.

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