Friday, February 12, 2016

Distracted Driving

Image result for distracted driving

Great article on Distracted Driving and what other states are doing about it as technology changes.  I believe there should be one law.  Pay attention while you are driving.  In addition to texting, it would include reading the paper, eating , putting on your mascara, having a little dog on your lap and yelling at your children.  Thanks to Shea Denning at the NC School of Government for her blog.

Everyone knows that it is unlawful to text while driving in North Carolina.  But what’s the legal status of all of the other distracting things people do with their phones?  Is it unlawful to take a selfie while driving? To post the selfie to Instagram? To look at a friend’s driving selfie on Instagram? To read another friend’s Facebook status update? To search the web for the latest weather forecast?

None of these actions is banned by the state law barring texting while driving. See G.S. 20-137.4A. Some may be prohibited by the statute that bars a person from viewing a computer while driving on the theory that using apps on a mobile phone renders the phone a computer. See G.S. 20-136.1. For the most part, however, the answers to the questions posed above are unclear. As a result, these types of behaviors seldom are addressed by law enforcement officers. Moreover, the fact that many of the hand manipulations that drivers perform on their phones may be lawful makes it harder for law enforcement officers to know when violations of existing state laws occur.
The Virginia plan. Legal ambiguities of this sort are not unique to North Carolina. Yesterday, a legislative panel in Virginia approved a bill aimed at clarifying similar questions under its laws. The Virginia bill amends that state’s existing law banning texting while driving to make it unlawful for a driver to “[m]anually select multiple icons or enter multiple letters or text in [a handheld personal communications device].” (Va. House Bill No. 461 (language added to current Va. Code § 46.2-1078.1 is italicized)). It also eliminates the requirement that the entry of icons or letters be done “as a means of communicating with another person.” The bill further amends existing law by making it unlawful for a driver to “[r]ead any information displayed on the device,” substituting the broader italicized language for “email or text message transmitted to the device or stored within.” Finally, the bill eliminates the exception from the ban for vehicles that are stopped but are not lawfully parked. The bill next will be considered by Virginia’s House Transportation Committee.
The numbers. One proponent of the amendments to Virginia law claimed that “[s]even out of 10 drivers text; 33 percent email; 28 percent browse the internet; 17 percent of people take a selfie; 14 percent post on Instagram and Twitter; 12 percent of people make videos; and 11 percent use Snapchat.” Those percentages are significantly higher than the National Highway Traffic Safety Administration’s report that 2.2 percent of drivers in 2014 text-messaged or visibly manipulated their hand-held devices. NHTSA’s report was based on observation of drivers who stopped at intersections controlled by stop signs or stoplights. The 2.2 percent reported by NHTSA was an increase from 2013, in which it estimated that the percentage of drivers text-messaging or visibly manipulating their phones was 1.7 percent. The rate of such activity was by drivers between ages 16 and 24 was higher: 4.8 percent.
Would broader laws make us safer? Regulating mobile phone use by drivers is a bit like regulating the sweepstakes industry. By the time one activity becomes unlawful, there’s another arguably lawful software application that is more appealing anyway. By way of example, NHTSA reports that drivers’ use of hand-held phones decreased from 6.2 percent in 2005 to 4.3 percent in 2014. While fourteen states ban hand-held phone use by drivers, the vast majority do not. I wonder whether the decrease in this activity has as much to do with hands-free in-vehicle technology and the declining use of phones as, well, phones, as it does with governmental regulation.
Plus, as long as vehicles are driven by humans there will be distractions. I remember my mother constantly filing her fingernails while driving me around as a kid. I’ve seen people driving while reading the newspaper (the old-school kind that is actually printed on a piece of paper). Drivers change radio stations and compact discs. They eat food (sometimes with utensils) while driving. I’m personally acquainted with a person who has applied mascara from behind the wheel. And, as regular blog readers know, I have driven on road trips with actual children in the car. Talk about distracting . . .
Yet there is a sense that the pervasiveness of visual and manual communication by electronic device surpasses these kinds of distractions. (NHTSA reports that 14 percent of all fatal distraction-affected crashes in 2013 involved the use of a mobile phone and 8 percent of all people injured in distraction-affected crashes in 2013 were involved in a crash involving mobile phone use.) The notification of a text message, a like, or a chat calls for immediate attention.  And, for many people, these kinds of alerts arrive every few seconds. To view the notification, the driver must look away from the road. To respond, he or she must look away even longer.
Back to the selfie. Not even the Virginia plan would bar a driver from taking a selfie, distracting as that activity may be. It would, however, bar the driver from posting the selfie on a social media if that action required “select[ing] multiple icons.” If North Carolina decides to get into the selfie-regulation business, I sure hope someone calls me. I want to be in the vanguard of codifying that term.

Wednesday, February 10, 2016

Can you lose your license under NC Implied Consent Law if you are on a Bike

Image result for riding bike while drunk

I always find it interesting that you can lose your license if you get drunk and choose to ride a bike home instead of driving your car.  It would seem that choosing to take a bike is a better decision.  However, under NCGS 20-16.2 (copied below), you have given implied consent to give a chemical test if you are operating any vehicle.  Under 20-4.01 (49), a bike is a vehicle.  To me this is a case where the legislature has not really thought the process through.  Shouldn't we encourage a drunk person to take a bike rather than a car?  The law does not say so.

§ 20-16.2.  Implied consent to chemical analysis; mandatory revocation of license in event of refusal; right of driver to request analysis.
(a)        Basis for Officer to Require Chemical Analysis; Notification of Rights. - Any person who drives a vehicle on a highway or public vehicular area thereby gives consent to a chemical analysis if charged with an implied-consent offense. Any law enforcement officer who has reasonable grounds to believe that the person charged has committed the implied-consent offense may obtain a chemical analysis of the person.
Before any type of chemical analysis is administered the person charged shall be taken before a chemical analyst authorized to administer a test of a person's breath or a law enforcement officer who is authorized to administer chemical analysis of the breath, who shall inform the person orally and also give the person a notice in writing that:
(1)        You have been charged with an implied-consent offense. Under the implied-consent law, you can refuse any test, but your drivers license will be revoked for one year and could be revoked for a longer period of time under certain circumstances, and an officer can compel you to be tested under other laws.
(2)        Repealed by Session Laws 2006-253, s. 15, effective December 1, 2006, and applicable to offenses committed on or after that date.
(3)        The test results, or the fact of your refusal, will be admissible in evidence at trial.
(4)        Your driving privilege will be revoked immediately for at least 30 days if you refuse any test or the test result is 0.08 or more, 0.04 or more if you were driving a commercial vehicle, or 0.01 or more if you are under the age of 21.
(5)        After you are released, you may seek your own test in addition to this test.
(6)        You may call an attorney for advice and select a witness to view the testing procedures remaining after the witness arrives, but the testing may not be delayed for these purposes longer than 30 minutes from the time you are notified of these rights. You must take the test at the end of 30 minutes even if you have not contacted an attorney or your witness has not arrived.
(a1)      Meaning of Terms. - Under this section, an "implied-consent offense" is an offense involving impaired driving, a violation of G.S. 20-141.4(a2), or an alcohol-related offense made subject to the procedures of this section. A person is "charged" with an offense if the person is arrested for it or if criminal process for the offense has been issued.
(b)        Unconscious Person May Be Tested. - If a law enforcement officer has reasonable grounds to believe that a person has committed an implied-consent offense, and the person is unconscious or otherwise in a condition that makes the person incapable of refusal, the law enforcement officer may direct the taking of a blood sample or may direct the administration of any other chemical analysis that may be effectively performed. In this instance the notification of rights set out in subsection (a) and the request required by subsection (c) are not necessary.
(c)        Request to Submit to Chemical Analysis. - A law enforcement officer or chemical analyst shall designate the type of test or tests to be given and may request the person charged to submit to the type of chemical analysis designated. If the person charged willfully refuses to submit to that chemical analysis, none may be given under the provisions of this section, but the refusal does not preclude testing under other applicable procedures of law.
(c1)      Procedure for Reporting Results and Refusal to Division. - Whenever a person refuses to submit to a chemical analysis, a person has an alcohol concentration of 0.15 or more, or a person's drivers license has an alcohol concentration restriction and the results of the chemical analysis establish a violation of the restriction, the law enforcement officer and the chemical analyst shall without unnecessary delay go before an official authorized to administer oaths and execute an affidavit(s) stating that:
(1)        The person was charged with an implied-consent offense or had an alcohol concentration restriction on the drivers license;
(2)        A law enforcement officer had reasonable grounds to believe that the person had committed an implied-consent offense or violated the alcohol concentration restriction on the drivers license;
(3)        Whether the implied-consent offense charged involved death or critical injury to another person, if the person willfully refused to submit to chemical analysis;
(4)        The person was notified of the rights in subsection (a); and
(5)        The results of any tests given or that the person willfully refused to submit to a chemical analysis.
If the person's drivers license has an alcohol concentration restriction, pursuant to G.S. 20-19(c3), and an officer has reasonable grounds to believe the person has violated a provision of that restriction other than violation of the alcohol concentration level, the officer and chemical analyst shall complete the applicable sections of the affidavit and indicate the restriction which was violated. The officer shall immediately mail the affidavit(s) to the Division. If the officer is also the chemical analyst who has notified the person of the rights under subsection (a), the officer may perform alone the duties of this subsection.
(d)       Consequences of Refusal; Right to Hearing before Division; Issues. - Upon receipt of a properly executed affidavit required by subsection (c1), the Division shall expeditiously notify the person charged that the person's license to drive is revoked for 12 months, effective on the tenth calendar day after the mailing of the revocation order unless, before the effective date of the order, the person requests in writing a hearing before the Division. Except for the time referred to in G.S. 20-16.5, if the person shows to the satisfaction of the Division that his or her license was surrendered to the court, and remained in the court's possession, then the Division shall credit the amount of time for which the license was in the possession of the court against the 12-month revocation period required by this subsection. If the person properly requests a hearing, the person retains his or her license, unless it is revoked under some other provision of law, until the hearing is held, the person withdraws the request, or the person fails to appear at a scheduled hearing. The hearing officer may subpoena any witnesses or documents that the hearing officer deems necessary. The person may request the hearing officer to subpoena the charging officer, the chemical analyst, or both to appear at the hearing if the person makes the request in writing at least three days before the hearing. The person may subpoena any other witness whom the person deems necessary, and the provisions of G.S. 1A-1, Rule 45, apply to the issuance and service of all subpoenas issued under the authority of this section. The hearing officer is authorized to administer oaths to witnesses appearing at the hearing. The hearing shall be conducted in the county where the charge was brought, and shall be limited to consideration of whether:
(1)        The person was charged with an implied-consent offense or the driver had an alcohol concentration restriction on the drivers license pursuant to G.S. 20-19;
(2)        A law enforcement officer had reasonable grounds to believe that the person had committed an implied-consent offense or violated the alcohol concentration restriction on the drivers license;
(3)        The implied-consent offense charged involved death or critical injury to another person, if this allegation is in the affidavit;
(4)        The person was notified of the person's rights as required by subsection (a); and
(5)        The person willfully refused to submit to a chemical analysis.
If the Division finds that the conditions specified in this subsection are met, it shall order the revocation sustained. If the Division finds that any of the conditions (1), (2), (4), or (5) is not met, it shall rescind the revocation. If it finds that condition (3) is alleged in the affidavit but is not met, it shall order the revocation sustained if that is the only condition that is not met; in this instance subsection (d1) does not apply to that revocation. If the revocation is sustained, the person shall surrender his or her license immediately upon notification by the Division.
(d1)     Consequences of Refusal in Case Involving Death or Critical Injury. - If the refusal occurred in a case involving death or critical injury to another person, no limited driving privilege may be issued. The 12-month revocation begins only after all other periods of revocation have terminated unless the person's license is revoked under G.S. 20-28, 20-28.1, 20-19(d), or 20-19(e). If the revocation is based on those sections, the revocation under this subsection begins at the time and in the manner specified in subsection (d) for revocations under this section. However, the person's eligibility for a hearing to determine if the revocation under those sections should be rescinded is postponed for one year from the date on which the person would otherwise have been eligible for the hearing. If the person's driver's license is again revoked while the 12-month revocation under this subsection is in effect, that revocation, whether imposed by a court or by the Division, may only take effect after the period of revocation under this subsection has terminated.
(e)        Right to Hearing in Superior Court. - If the revocation for a willful refusal is sustained after the hearing, the person whose license has been revoked has the right to file a petition in the superior court district or set of districts defined in G.S. 7A-41.1, where the charges were made, within 30 days thereafter for a hearing on the record. The superior court review shall be limited to whether there is sufficient evidence in the record to support the Commissioner's findings of fact and whether the conclusions of law are supported by the findings of fact and whether the Commissioner committed an error of law in revoking the license.
(e1)      Limited Driving Privilege after Six Months in Certain Instances. - A person whose driver's license has been revoked under this section may apply for and a judge authorized to do so by this subsection may issue a limited driving privilege if:
(1)        At the time of the refusal the person held either a valid drivers license or a license that had been expired for less than one year;
(2)        At the time of the refusal, the person had not within the preceding seven years been convicted of an offense involving impaired driving;
(3)        At the time of the refusal, the person had not in the preceding seven years willfully refused to submit to a chemical analysis under this section;
(4)        The implied consent offense charged did not involve death or critical injury to another person;
(5)        The underlying charge for which the defendant was requested to submit to a chemical analysis has been finally disposed of:
a.         Other than by conviction; or
b.         By a conviction of impaired driving under G.S. 20-138.1, at a punishment level authorizing issuance of a limited driving privilege under G.S. 20-179.3(b), and the defendant has complied with at least one of the mandatory conditions of probation listed for the punishment level under which the defendant was sentenced;
(6)        Subsequent to the refusal the person has had no unresolved pending charges for or additional convictions of an offense involving impaired driving;
(7)        The person's license has been revoked for at least six months for the refusal; and
(8)        The person has obtained a substance abuse assessment from a mental health facility and successfully completed any recommended training or treatment program.
Except as modified in this subsection, the provisions of G.S. 20-179.3 relating to the procedure for application and conduct of the hearing and the restrictions required or authorized to be included in the limited driving privilege apply to applications under this subsection. If the case was finally disposed of in the district court, the hearing shall be conducted in the district court district as defined in G.S. 7A-133 in which the refusal occurred by a district court judge. If the case was finally disposed of in the superior court, the hearing shall be conducted in the superior court district or set of districts as defined in G.S. 7A-41.1 in which the refusal occurred by a superior court judge. A limited driving privilege issued under this section authorizes a person to drive if the person's license is revoked solely under this section or solely under this section and G.S. 20-17(2). If the person's license is revoked for any other reason, the limited driving privilege is invalid.
(f)        Notice to Other States as to Nonresidents. - When it has been finally determined under the procedures of this section that a nonresident's privilege to drive a motor vehicle in this State has been revoked, the Division shall give information in writing of the action taken to the motor vehicle administrator of the state of the person's residence and of any state in which the person has a license.
(g)        Repealed by Session Laws 1973, c. 914.
(h)        Repealed by Session Laws 1979, c. 423, s. 2.
(i)         Right to Chemical Analysis before Arrest or Charge. - A person stopped or questioned by a law enforcement officer who is investigating whether the person may have committed an implied consent offense may request the administration of a chemical analysis before any arrest or other charge is made for the offense. Upon this request, the officer shall afford the person the opportunity to have a chemical analysis of his or her breath, if available, in accordance with the procedures required by G.S. 20-139.1(b). The request constitutes the person's consent to be transported by the law enforcement officer to the place where the chemical analysis is to be administered. Before the chemical analysis is made, the person shall confirm the request in writing and shall be notified:
(1)        That the test results will be admissible in evidence and may be used against you in any implied consent offense that may arise;
(2)        Your driving privilege will be revoked immediately for at least 30 days if the test result is 0.08 or more, 0.04 or more if you were driving a commercial vehicle, or 0.01 or more if you are under the age of 21.
(3)        That if you fail to comply fully with the test procedures, the officer may charge you with any offense for which the officer has probable cause, and if you are charged with an implied consent offense, your refusal to submit to the testing required as a result of that charge would result in revocation of your driving privilege. The results of the chemical analysis are admissible in evidence in any proceeding in which they are relevant.  (1963, c. 966, s. 1; 1965, c. 1165; 1969, c. 1074, s. 1; 1971, c. 619, ss. 3-6; 1973, c. 206, ss. 1, 2; cc. 824, 914; 1975, c. 716, s. 5; 1977, c. 812; 1979, c. 423, s. 2; 1979, 2nd Sess., c. 1160; 1981, c. 412, s. 4; c. 747, s. 66; 1983, c. 87; c. 435, s. 11; 1983 (Reg. Sess., 1984), c. 1101, ss. 5-8; 1987, c. 797, s. 3; 1987 (Reg. Sess., 1988), c. 1037, ss. 76, 77; c. 1112; 1989, c. 771, ss. 13, 14, 18; 1991, c. 689, s. 233.1(c); 1993, c. 285, ss. 3, 4; 1995, c. 163, s. 1; 1997-379, ss. 3.1-3.3; 1998-182, s. 28; 1999-406, ss. 1, 10; 2000-155, s. 5; 2006-253, s. 15; 2007-493, ss. 25, 27; 2011-119, s. 1.)

Saturday, February 6, 2016

Driving While Talking CDL

Image result for talking while trucking

Not many drivers know that while drivers of cars can use their phones while driving, truck drivers cannot.  Here is a great article by Shea Denning of the NC School of Government on the subject.

There is a ban on hand-held mobile phone use by drivers in North Carolina. And there’s a good chance you’ve never heard of it.
That’s because the ban only applies to drivers of commercial motor vehicles—not drivers of private passenger vehicles.
The federal government banned the use of hand-held mobile phones by the drivers of commercial motor vehicles in 2011. The next year, the North Carolina legislature codified the ban in G.S. 20-137.4A(a1). And while the federal rule applies only to commercial motor vehicles operated in interstate commerce, North Carolina’s administrative rules extend the prohibition to for-hire motor carriers, for-hire motor carrier vehicles, private motor carriers and private motor carrier vehicles operated entirely within North Carolina if the vehicle is: 
(1) a vehicle having a gross vehicle weight rating (GVWR), gross combination weight rating (GCWR), gross vehicle weight (GVW), gross combination weight (GCW) of 26,001 pounds or more, whichever is greater;
(2) designed or used to transport 16 or more passengers, including the driver; or
(3) used in transporting a hazardous material in a quantity requiring placarding pursuant to 49 C.F.R. Parts 170 through 185.
14B N.C.A.C. 07C .0101. Neither the federal nor the North Carolina rules barring hand-held mobile phone use apply to commercial motor vehicles operated by federal, state or local governments.
What exactly are drivers of CMVs prohibited from doing? Drivers of qualifying commercial motor vehicles may not “use a hand-held mobile telephone while driving.” 49 C.F.R. § 392.82. Driving is defined broadly as operating a commercial motor vehicle on a highway, including while temporarily stationary because of traffic, a traffic control device, or other momentary delays.” Driving does not include “operating a commercial motor vehicle when the driver has moved the vehicle to the side of, or off, a highway and has halted in a location where the vehicle can safely remain stationary.” An exception applies to allow the driver of a commercial motor vehicle to use a hand-held mobile telephone “when necessary to communicate with law enforcement officials or other emergency services.”
An earlier-enacted ban prohibits such drivers from texting while driving. 49 C.F.R. § 392.80.
A fact sheet from the Federal Motor Carrier Safety Administration (FMCSA) says it is easy to comply with the rules. It summarizes the rules as: No REACHING, No HOLDING, No DIALING, No TEXTING, No READING.
What about other drivers? All drivers in North Carolina are prohibited from driving on a street or public vehicular area while using a mobile telephone to: (1) manually enter multiple letters or text as a means of communicating with another person; or (2) read any electronic mail or text message transmitted to or stored within the device. G.S. 20-137.4A(a). This prohibition does not apply to the operator of a vehicle that is “lawfully parked or stopped.” Thus, it presumably is permissible to text and read emails and texts while temporarily stopped at a traffic light.
Drivers of private passenger vehicles who are 18 or older may lawfully hold mobile phones in their hands, dial numbers, and talk while driving in North Carolina.
Drivers who are under 18 are prohibited from operating a motor vehicle on a street or public vehicular area in North Carolina while using a mobile phone while the vehicle is in motion. G.S. 20-137.3(d). Exceptions apply to allow minors to use a mobile phone to communicate with a parent, legal guardian, spouse, or emergency personnel. 
Reason for the federal ban. The federal rule was adopted as part of the U.S. Transportation Department’s effort to end distracted driving. The Federal Motor Carrier Safety Administration (FMCSA) said its research showed that using a hand-held cell phone while driving required riskier steps than hand-free mobile phone use such as searching and reaching for the phone. According to the FMCSA, commercial drivers reaching for an object such as a cell phone are three times more likely to be involved in a crash or “other safety critical event.” Dialing a hand-held phone made it six times more likely that a commercial driver would be involved in such an event.
Could the hand-held ban be extended? A few years ago, the National Transportation Safety Board called for a complete ban on the use of cell phones while driving, citing an “epidemic” of distracted driving. Given the ubiquitous use of mobile phones by drivers, I’m doubtful that state legislators, who have the authority to order such a ban, have an appetite for such a sweeping prohibition. The ready availability of so much hands-free technology might, however, render broader application of the hands-free requirement more appealing.
North Carolina cities may not enact their own rules. The Town of Chapel Hill enacted an ordinance in 2012 prohibiting drivers from using a mobile telephone while operating a motor vehicle in motion on a street or public vehicular area within the town. The operator of a local towing company challenged the lawfulness of the ordinance on the basis that state law preempts municipal restrictions on mobile phone use while driving. The North Carolina Supreme Court agreed. In King v. Town of Chapel Hill, 367 N.C. 400, the court determined that the General Assembly’s enactment of various statutory provisions to reduce the dangers associated with mobile phone use while driving indicated its “’intent to provide a complete and integrated regulatory scheme to the exclusion of local regulation.’” Id. at 412 (citing G.S. 160A-174(b)(5)).