Motorcyclists Against Dumb Drivers Position Urging Law Banning Cell Phone Use, “Through the Prism of Libertarianism.”

By, Dave Christy

[The following is the full text of personal correspondence by Dave Christy addressed to Ray Henke of Motorcyclists Against Dumb Drivers and Bruce Arnold of LDR Long Distance Rider with regard to Mr. Henke’s Position Paper and Scientific Review Article Urging Comprehensive Cell Phone Bans As Essential for Motorcyclist Safety. Mr. Arnold had sent the article to Mr. Christy for his review and comment. Mr. Christy kindly provided his permission to reprint his reply correspondence.]

Dear Bruce and Ray,

I have read the entire article and understand it very well; you have made an exceptional case, with empirical data to back it up, for totally banning the use of cell phones while operating a motor vehicle, and I do not disagree with anything contained therein.

With that said, I would like to provide some commentary as food for thought, and some additional reality as to what all roads users are up against, as well as how things are from an enforcement & judicial standpoint. I'll open by stating that my personal perspective is that of a Libertarian. The basic tenets of Libertarianism are that the individual is responsible -- responsible for conducting himself/herself in matters and actions of living Life and conduct of productive citizenship in the Pursuit of Happiness as long as it brings no harm to another - a cognitive effort that I personally attempt to live by everyday. So that is me, and at the same time I realize that a large number of humans I co-habitate with on this western hemisphere don't freely give much weight and consideration to responsibility and their obligations to others. Now, should I come into another person's life and cause harm or create detriment and damage, I presume to bear the consequences of my actions. Contrast that with a chunk of populace that considers the "self" first and foremost as they go about their activities, absent the self-evaluation. People do what they do in the name of their freedom, and when their actions translate into adversity and carnage - whether upon themselves, someone else, or a combination of the two - they want the path of least responsibility and resistance.

I used to own a cell phone. I had it for maybe six months and I lost it earlier this year; I haven't replaced it and I don't miss it. I didn't use it much anyway and had no addiction to it, nor did I (as even now) consider it essential. It became apparent to me early on, as I made a couple of calls while driving, that I wasn't good at driving and phone multi-tasking, so I'd pull off the road if I needed to make or receive a call. In the course of my employment I am required to be on 24 hour-call every third week to attend to fleet vehicle matters, which puts me in the company truck with the company cell phone -- I still won't phone talk and drive. As a person who has usedthe roads in every capacity (trucks, bicycle, cars, motorcyclist, etc.) in my time, I've seen and become actutely aware of the erraticism and negligence leading to much carnage and I don't care to be a contributor to the cell phone pervasiveness polluting the roadways.

I detest like Hell to see a law that bans the use of cellphones because it flies in the face of my beliefs; I am responsible and know there's a time and place for the handheld. Another law is another freedom lost. However, I understand that in our society those of us who monitor ourselves pay a price for those who don't - laws meant to be deterrents put a smothering blanket on us all for what a minority does - and in this case that minority has caused critical mass (if we hold to the definition of critical mass as 5% or more of the population engaged in a certain activity.)

Now I realize that we are talking about cell phone use in vehicles specifically here, however, and in addition the auto manufacturers have provided a barrage of vehicle cockpit gadgetry and distractions under the guise of "amenities" (and I'm qualifying my remarks as a 35-year auto technician, master & advanced certified, and a member of the Society of Automotive Engineers as part of my resume') and they have also contributed to this problem. Maybe they first initiated it if we look at the distraction problem in terms of historically conditioning the buying public and then enabling them to be distracted. It would then follow that cell phone use in the vehicle is an extension. Follow me on this if you will: there isn't much margin on a new vehicle sale that's a "base" model, so they get loaded up with factory extras that are profitable - and Americans have bought it up, even if they don't know how to use everything that's inside, and even if the controls are placed on the steering column. My experience is that few vehicle owners read their owners' manuals to know what they've got and how to use it, so they opt for "fiddling" with their stuff while they're "driving." Let your imagination run wild (the manufacturers have) as to what vehicles can be (and are) equipped and optioned with. I remember a couple of years ago when a newer model of the Mercury Villager was introduced and you could have down-sized versions of a clothes washer and dryer in the back - and I was incredulous, I thought "You have got to be friggin' kiddin' me !" But they weren't. These days the motor vehicle is used for every purpose you can think of in addition to its' supposed primary purpose of transport.

Let's presume the manufacturers know what they're doing (they do), and the attendant distractions and complacency that vehicle 'comforts' provide. Vehicle engineering and building is so scientific as to be a distinct art form in and of itself. Safer crashing rules the day -- you can have all the toys you want - the "safety" equipment and crumple zones will save you, you can have computers control the vehicle in all forms, even "stabilize" it and provide traction control. The O.E's market their crash ratings as part ofthe sale. You can stuff more logic circuits into the vehicle while at the same time ill-logically removing the driver from his/her primary responsibility and obligation of piloting the machine - thereby continually dumbing down the driver while building ever "smarter" vehicles. Small wonder why drivers are inattentive - it's become less requisite - and if they get in an "accident", it's all about saving their own ass. That's what NHTSA concentrates on - Saving Lives and crash survivability - while competency, skill evaluation, awareness, and education take a back seat. Road death statistics may be holding steady for the cages, but I would suggest that the number of crashes/accidents involving property damage and/or injury is climbing astronomically in comparison to even five years ago.

The most common offenses in our society are those of a traffic nature which include the accidents that maim and kill. So let's say that we address driver accountability by implementing stringent cell phone use bans/laws. Let's say we have laws with meaningful sanctions. The enforcement and application issues come into play. In my time as a Bikers' rights activist, I have come to know first-hand how the LEO's, prosecutors, defense attorneys, and courts operate. I've been involved with victims and their case histories, enough to understand that laws in and of themselves provide no protection whatsoever. Truthfully, laws on the books serve as a deterrent only, and the threat of meaningful punishment upon an individual for indulging in an illegal action is that deterrent. When that punishment is not guaranteed nor meaningful, the rampant acts of negligence continue. There are not enough examples placed before the public eye to the extent of maximum penalty imposed/hammering the offender for the driving public to take notice and change behavior. Only the most egregious (aggravated, as they call it) or high-profile cases receive attention. Legislators make laws with (generally) good intent to address a problem (otherwise known as "legislative intent"), and attorneys on both sides look to see how that law can be manipulated, twisted, turned, convoluted, circumvented, argued, and loop-holed not so much to serve the public and victims' interest (which are one and the same), but rather to serve the "system" of expedient disposition of cases via plea bargains that they have created and serve first and foremost. When we understand that the judicial system is attorney-centered and defers to what I term as "prosecutorial prerogative" (as in the DA or his/her assistants will proceed as they please) and will bargain with the defense (whom they know many times), afterwards maybe go out to lunch or golf together, then we will understand why victims complain so bitterly about justice not being served. It is the dysfunctional norm. The public places their trust and faith in the LE's, prosecutors, and courts that the right things will be done - and it isn't happening. Prosecution has been afforded far too much latitude (read: discretion) and too many legislators in the various states are complicit by ignorance and/or capitulation as to the continuation of this faulty system. The legislators have been advisedthat "it's best if we (prosecutors) maintain discretion..." In other words, "trust us." I also believe there are generally good laws on the books with substantial available penalties (though a number of them could use tweaking and improvement) if convictions were obtained on the right and properly applied original charge. I can relate for a fact that in Colorado, the conviction rate for drivers charged with Careless Driving 1 (serious bodily injury or death) since year 2000 ranges from 19-25% and is dropping further - a dismal and pathetic statistic that I expect is paralled in most other states as well.

Another angle: I can already visualize/conceptualize the arguments against stopping and ticketing a driver for talking on the cell phone, and if a cell-phoner causes accident with injury (or death), how does LE and/or prosecution determine if that person was on a phone? Would they be empowered to subpoena cell phone records to correlate the time of accident with time of phone use? Would the protections against self-incrimination come into play. What about privacy issues? Prosecutors like to claim that the sheer volume of cases overwhelm a system that can't handle it, they are short of resources, i.e. - court rooms, prosecutors, judges, etc., - therefore the plea bargain system has to remain in effect to achieve some type of conviction and keep cases from clogging the courts. My response and question to that is "Which of you, and your District Attorneys associations and councils, has formally asked the state legislature for appropriations to expand the infrastructure so that you will serve the public interest and do the job you're elected/hired to do?" I'm personally not aware of any such request, though I keep my eyes open for any, or even one, for that matter. As far as how it would be paid for - of course, the monies would be recouped through fines and surcharges. In the meantime however, I hear about state legislatures addressing funding for education, indigent care, service programs, etc, etc.

I concur that penalties have to be stringent and allow no latitude; if there's going to be law, it has to be unassailable and applied with no possibility of bargaining out. I'm not holding my breath that's going to happen anytime soon.

In lieu of law: as far as civil actions are concerned, I say drop the hammer unmercifully and litigate the Hell out 'em 'til they "get it"...

Dave Christy
Golden, CO