IT’S A GRAY AREA:

So now we have a new law in California that prohibits people from driving a motor vehicle while talking on hand-held cellphones. OK, I do not argue that holding a cellphone while driving can sometimes divert a driver’s attention from the important duties at hand. But why prohibit only this diversion instead of so many other more serious ones?

Dialing a cellphone probably causes more of a diversion than talking on one, so why is that act not banned? And how about smoking a cigarette, or, even worse, lighting one?

Or why not prohibit drivers from opening fast food packages and then eating the food while driving? Or from reading a map while driving — or a newspaper!

If it is really not safe to drive a motor vehicle with only one hand on the steering wheel, why not pass a law requiring that two hands must be used at all times? That will address all of these potentially dangerous activities. But isn’t the real issue that talking on a telephone is the dangerous act, instead of driving while holding the phone in your hand?

One study found that the risk of motor vehicle collisions is four times greater when a driver is talking on a telephone — and heavy cellphone users were found to be involved in twice as many fatal collisions as light users. And other studies show that a hands-free phone does not make telephone usage any safer.

Furthermore, consider that under this new law when a phone rings, the driver will now be trying both to find his or her phone as well as the earpiece. So in reality the law may be making the situation worse.

More ridiculously, text messaging is not prohibited under this new law. Some drivers do that a lot, and that takes even more concentration — as well as the use of both hands!

Why does our legislature pass laws with so little thought? Every time the government prohibits one of our activities, it intrudes upon our liberties. I am not arguing that this is always inappropriate, but if it must happen it should be done with care.

As a Libertarian I believe we should have fewer laws and instead hold people accountable for their actions. So if drivers negligently run into you while eating a hamburger, lighting a cigarette, text messaging or talking on a cellphone, they should be responsible for the harms caused.

Now I know the response is that it would be much better if a law could keep the harm from occurring in the first place, and I agree.

That is why we prohibit driving a motor vehicle while under the influence of alcohol or similar mind-altering substances. But when is the legislature overstepping its boundaries and unnecessarily taking away our freedoms?

The answer is that legislators have an obligation to consider the impacts and effects of all of the laws they pass. If they cavalierly pass restrictive laws for political purposes just to show that they are doing something, instead of making sure their laws will actually protect the public, then they have failed us. That has happened here. This new law superficially sounds good, but mostly it will only help the merchants that sell the new required earpiece devices.

Parenthetically, you shouldn’t be concerned that judges will not follow laws when they don’t agree with them. We do that all of the time. For example, one of the laws that I enforce as a judge is the so-called “wiretapping” law that makes it a felony for someone to record a telephone conversation even if that person is a party to it. (See section 631 of the Penal Code.) The legislature calls this an invasion of privacy, and that is certainly true for someone who is not a party to the call. But when you know you are talking to a particular person on the telephone, why should it be an invasion of privacy either for you or the other party to tape record the conversation?

As a practical matter, each of the participants can testify in court about what was said during the conversation, so why should it be a crime for a recording to be made that helps to make that testimony more accurate? It seems to me that the present law simply rewards people who testify less accurately, or even untruthfully. But as Ulysses S. Grant said, the best way to get a bad law repealed is to enforce it, and, like it or not, that is what all good judges do.

So I certainly recommend you comply with this new law, and all other laws as well. And they will be enforced by police officers and judges alike. But along the way, please join with me in thinking about both the positive and negative effects this law will have. If you agree with me that it is not particularly well thought out, contact your legislator and ask that it either be repealed or at least amended to cover the conduct that really presents a threat to our highway safety and welfare. Sacrifices of our liberties should not come without substantial consideration as to whether the benefits are worth the costs.

JAMES P. GRAY is a judge of the Orange County Superior Court, the author of Wearing the Robe – the Art and Responsibilities of Judging in Today’s Courts (Square One Press, 2008), and can be contacted at [email protected] or at his blog at JudgeJimGray.JudgeJimGray.com.