Wednesday, May 19, 2010

An open letter sent to The Other Paper but never published there; from Sharon Montgomery.

I read The Other Paper May 6 cover story about the new Columbus law restricting texting while driving. There are so many statements in that article that need to be commented on that my response is too long for a letter to the editor. So, I respectfully request that you consider using it as a guest column or at the very least as a basis for a follow-up article by one of your writers. Thank you.

To the editor of The Other Paper:

Steph Greegor's May 6 article, "Officer, I swear I wasn't texting," was undoubtedly intended to give notice to the public that this new law is now in effect, and to present a comprehensive summary of related issues. Unfortunately, it undermines the value of this new law by presenting far more reasons why there should not be a law or why its effectiveness is questionable than the number of reasons for the law. This imbalance fuels the fire of opposition to this safety measure. Additionally, some of the information provided to Greegor is misleading.

Attorney Meeks' question about how far prosecutors will go encourages drivers to ignore the law with a degree of confidence that they can "beat the rap." He worries about the cost of the legal process to seize and search a phone. He conveniently omits the fact that proving drunk driving is expensive, time-consuming, and highly regulated, but justified by the benefits. He apparently forgets the concept of rebuttable presumption. A driver who is stopped for erratic driving and who then appears to be drunk is presumed to be drunk. He can rebut that presumption by allowing any of a variety of sobriety tests. The burden of proof is on the seemingly-drunk driver.

I have no training or experience in the law or in law enforcement but for nine years I have been educating myself on all the issues surrounding driving while phoning/texting (DWP/T). I know that Pennsylvania has written rebuttable presumption right into some of its pending bills on this traffic danger. I know that Ohio uses it in drunk driving. I know that Ohio uses it for proof of financial responsibility. If you are stopped for any reason and can't show a current insurance card or other proof, you are presumed to be uninsured and the burden is on you to provide proof to the police within a given time period. I don't see why legal experts can't find a way to apply rebuttable presumption to Ohio DWP/T laws. That eliminates the expense and delay of legal wrangling. The driver gets a ticket and either admits he was texting and pays the fine, or contests it and brings his own phone bill into court to show that he did not send a text message near the time of the traffic stop.

More disturbing than Meeks' statements, which are at least only based on opinion, are those of assistant city prosecutor and Columbus police legal advisor Jeff Furbee, which are based on facts. I realize people are sometimes misquoted in news stories. Reporters can misunderstand what was said or misinterpret their notes. If Mr. Furbee was misquoted, I would expect to read a correction by him or Greegor in the May 13 paper.

If Furbee was not misquoted, he was mistaken. He is reported to have said we don't ban behavior, we ban results. We most certainly do ban behavior separately from the results. Driving drunk, running a red light, exceeding the speed limit, and driving left of center are all banned driving behaviors, regardless of whether or not they cause a crash. There are many more examples.

Greegor cites a Washington state report on the low incidence of DWT-caused crashes Did Greegor or the report authors look into possible explanations for this seemingly surprising finding? We know from Bexley and Cleveland, and from Columbus Police Chief Distelzweig's instructions to his officers, that enforcement is not always as strong or consistent as it should be. If enforcement is weak or inconsistent in Washington, then not all DWT crashes are being counted. If texting as a crash cause is not a specific check-off item on the crash report form, then it is likely that not all DWT crashes are being counted.

Greegor is correct that the Ohio Highway Patrol does not collect statistics on specific distractions that cause crashes. No law enforcement jurisdictions in Ohio that use the uniform crash report form are routinely collecting those statistics. For years, I have been urging the state Dept. of Public Safety to add specific distraction items to that form. The current review is giving serious consideration to just such a revision.

Greegor cites the recent study by the Highway Loss Data Institute which looked at insurance claims for crashes in states with laws against DWP with hand-held phones. Researchers were surprised that there was not a noticeable reduction in crash claims. The only surprise here is that researchers couldn't figure out the obvious reason. When any use of mobile communication devices is still allowed, then too many drivers who use them will simply switch from the prohibited use to the allowable use. As long as we continue to allow drivers to distract themselves so dangerously with this unnecessary behavior, many will continue to do so and some of them will crash.

One of the factors now preventing some DWP/T crashes is the fact that there are still alert drivers on the road. Their defensive driving skills prevent erratic driving and near-misses from becoming actual crashes. The longer this is legal, there will be more drivers doing it, further reducing the number of alert drivers who can take immediate evasive action and prevent the imminent crash.

Chief Distelzweig's comment about search warrants for serious crashes being used in lawsuits is very distressing. A crash victim should never be revictimized by the criminal justice system by being made to endure the grueling, dysfunctional, expensive (legal expenses are not recoverable) tort process as his only means of justice or even reimbursement. Lawsuits for traffic crashes are pretty much an exercise in futility anyway. No one is legally liable for the victim's losses. The offender can file bankruptcy if the civil court says he owes his victim more than he can afford, even though the losses are also more than the victim can afford. Federal bankruptcy law allows all traffic offenders except drunk drivers this escape from responsibility. The insurance company is required by law to pay only to the limits of the policy, which will usually be less than the staggering costs of a serious crash. Restitution is ordered only as part of some sentences. Sentences are given only in trials. Most traffic offenses are misdemeanors (yes, even killing with a car) that don't require a criminal court appearance. And, there are known cases of restitution orders not being enforced.

Furthermore, Chief Distelzweig's comment shows he is completely overlooking the goal of prevention. Bad driving should be stopped before it results in a crash; before there is a victim who is forced into the position of having to sue just in case he might recover some of his enormous losses.

Steph Greegor is to be commended for writing such a comprehensive article. However, some of the information included is misleading and the overall tone of the article is that this new law is "much ado about nothing" and cannot or will not be made to be effective. This is a serious setback to the growing effort to reduce this major and preventable traffic safety hazard.

Sharon Montgomery
DWP victim; traffic safety/victims' rights advocate

1 comment:

Steph Greegor said...

Hello Agent of Currency! This is Steph Greegor from The Other Paper. I loved your letter to us regarding my article. I plan to post it as a blog on our site and our Facebook site. If you're on Facebook, please "like" us and leave your comments. Thanks!

Steph Greegor, Reporter
The Other Paper