HB 255 - READING OR TYPING MESSAGE WHILE DRIVING 1:57:14 PM CHAIR GATTO announced that the final order of business would be HOUSE BILL NO. 255, "An Act prohibiting the driver of a motor vehicle from reading or typing a text message or other nonvoice message or communication on a cellular telephone, computer, or personal data assistant while driving a motor vehicle." [Included in members' packets was a proposed committee substitute (CS) for HB 255, Version 27-LS1165\D, Gardner, 2/2/12.] CHAIR GATTO mentioned that members' packets contain forthcoming amendments. 1:57:56 PM REPRESENTATIVE THOMPSON moved to adopt the proposed committee substitute (CS) for HB 255, Version 27-LS1165\D, Gardner, 2/2/12, as the working document. There being no objection, Version D was before the committee. 1:58:26 PM REPRESENTATIVE LES GARA, Alaska State Legislature, speaking as one of the bill's joint prime sponsors, explained that HB 255 was engendered by a recent court decision that the state's current statute prohibiting the use of screen devices while driving does not cover the behavior of "texting" while driving regardless that many members of the legislature thought that it did. He said he anticipates that this issue will eventually be addressed by the Alaska Supreme Court, but meanwhile, HB 255 would clarify the legislature's intention that texting while driving be illegal. Statistics indicate that people who text while driving are 20 times more likely to get into an accident than those who don't text while driving. Also, if one "texts" a "normal-sized" text message while driving, one can drive the length of a football field before being done - the length of a football field full of potential victims. Other states - 35 of them - have already banned texting while driving. REPRESENTATIVE GARA indicated that in Alaska, there have already been severe and even fatal accidents attributed to texting while driving. Texting while driving is dangerous. A person who texts while driving is not paying attention to what he/she ought to be paying attention to while driving a 2,000 pound vehicle, and this can result in somebody being killed. One of the main reasons for making it illegal to text while driving is to start educating people with regard to how fatal texting while driving can be, similar to what occurred with regard to educating people about the dangers of drunk driving. Because a lot of people view texting as just a social phenomenon, it must be reinforced that it can be a fatal phenomenon - a person texting while driving can kill someone. A recently-conducted poll indicates that over a third of people text while driving, illustrating the need for an outright ban on texting while driving. Attempting to prosecute someone for this behavior under the state's existing distracted-driving or negligent-driving laws, however, simply won't work, he predicted, because in such cases, there must be a unanimous jury verdict, and it is unlikely at this point in time that jurors who themselves text while driving will see anything wrong with such behavior. REPRESENTATIVE GARA posited that HB 255 has been drafted broadly enough to address possible future forms of [text-capable] technology. Simply rewriting Alaska's distracted-driving law to address the behavior of texting while driving would result in the behavior being a mere violation rather than a crime, and simply adding the word, "texting" to the state's existing prohibition against using a screen device while driving, as the court has suggested the legislature do, won't suffice because the term, "texting" doesn't cover all the forms of technology that [either already, or might in the future,] enable a person to type and/or read text. It is for this latter reason, he relayed, that many legislators think that the court was wrong in its aforementioned decision. Again, HB 255 is intended to clarify for the court that texting, or using other technology for that purpose, is improper while driving a moving vehicle. 2:04:38 PM REPRESENTATIVE GARA explained that [Version D's proposed AS 28.35.161(a)(2) in part] specifies that a crime is committed if a person, while driving a moving vehicle, reads or types a text message or other "non-voice" message or communication. In other words, he elaborated, no texting, no "facebooking," no "tweeting," no typing on a "laptop" computer - "we don't want you typing while you're driving, we don't want you reading a text message while you're driving, we don't want you reading a computer screen while you're driving, we don't want you reading a facebook message while you're driving." To get into a car "knowing you're going to engage in this dangerous conduct" is almost premeditated behavior, he opined. Under the bill, if one types on or reads a screen device while driving, it would be a [class A] misdemeanor; however, if one engages in that behavior and causes physical injury to another person, causes serious physical injury to another person, or causes the death of another person, it would be [a class C felony, a class B felony, or a class A felony, respectively]. REPRESENTATIVE GARA mentioned that existing AS 28.35.161 provides for the aforementioned differing penalties, and that HB 255 would not change that. The behavior addressed by the bill is dangerous - a person shouldn't be shocked when he/she runs into someone while texting. This means, he relayed, any sort of typing or reading, whether on/from a cellular telephone ("cell phone"), a laptop, an "iPad", or whatever new technology that comes along which lets a person view messages or type them. He assured the committee that under both existing law and the bill, the vehicle must be moving in order for the crime to be committed; this stipulation will ensure that the behavior, when conducted in a stationary vehicle, isn't criminalized. He offered his belief that as currently written, HB 255 is going to address 90 percent of the perceived problem. 2:07:17 PM REPRESENTATIVE GARA explained that [Version D's proposed 28.35.161(d)] would provide an additional exemption for the viewing of authorized screen devices by law enforcement personnel or other emergency responders when such persons reasonably believe that the information on such devices is necessary to respond to health, safety, or criminal matters; existing AS 28.35.161(d) currently provides an exemption for devises/equipment installed in emergency vehicles, which are defined as police, fire, and emergency medical service vehicles. Subsection (d)'s proposed language, he indicated, covers "wireless" technology, and has met with the approval of law enforcement personnel, emergency responders, the Department of Law (DOL), and Legislative Legal and Research Services. In conclusion, he offered his belief that HB 255 would protect people from fatal accidents without compromising the efforts of the state's law enforcement and emergency response personnel, and that the aforementioned forthcoming amendments in members' packets seem consistent with the bill. REPRESENTATIVE GARA, in response to questions and comments, said he thinks that existing law already makes texting while driving illegal; assured members that HB 255 does not address the behavior of talking on a cell phone, which includes "dialing" a phone number, that existing law - as a matter of public policy - already provides exemptions for [among other things] mapping and global positioning system (GPS) equipment, and dispatching equipment [used in certain industries], and that HB 255 is proposing to broaden only the existing exemption addressing law enforcement and emergency responders; and concurred that HB 255 only pertains to motor vehicles. REPRESENTATIVE GRUENBERG, in response to questions and comments, noted that AS 28.90.990(a)(16) defines the term "motor vehicle" as a vehicle which is self-propelled except a vehicle moved by human or animal power. 2:18:53 PM REPRESENTATIVE GARA, in response to other questions, explained that the bill is not specific with regard to where a motor vehicle is being driven when the proscribed behavior takes place. If a person runs into someone while texting, for example, it should be a crime regardless of where it happens, whether on a public roadway, on private property, or in a parking lot. He acknowledged, though, that one would first have to be caught doing the proscribed behavior, and thus enforcement of HB 255's provisions could be difficult. Regardless, the bill should be passed because it's going to act as a deterrent, he predicted, sending the message that texting while driving is dangerous. REPRESENTATIVE GARA, in response to further questions, reiterated that the state's existing ban on texting while driving isn't always being enforced because of court interpretations, and that until the Alaska Supreme Court has a chance to rule on the issue - which could take some time yet - HB 255 would clarify [for the court and the public] that the behavior of texting while driving is illegal. To merely wait until the Alaska Supreme Court has a chance to rule on the issue could result in lives being lost during the intervening time. CHAIR GATTO expressed a preference for having the issue addressed sooner via passage of HB 255, rather than later as a result of waiting for a possible favorable ruling by the Alaska Supreme Court. 2:25:34 PM REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 1, labeled 27-LS1165\D.1, Gardner, 2/7/12, which read: Page 1, lines 6 - 12: Delete all material and insert: "* Section 1. The uncodified law of the State of Alaska is amended by adding a new section to read: STATEMENT OF PURPOSE. The purpose of this Act is to conform and clarify that the use of a cellular telephone, computer, personal data assistant, or any other similar means for texting or communicating in a manner prohibited by AS 28.35.161 has been illegal since AS 28.35.161 was enacted and that the December 1, 2011, magistrate's decision in State v. Adams, 3KN-11-719 CR, is legally incorrect." REPRESENTATIVE HOLMES objected for the purpose of discussion. REPRESENTATIVE GRUENBERG explained that the existing law prohibiting the use of screen devices while driving was intended to cover the behavior of texting while driving, and that its language was intentionally left broad on that point in order to address the fact that [texting technology] is rapidly advancing; and indicated that Amendment 1's proposed change to the bill's statement of purpose - found in Section 1 of Version D - would better clarify the point that the court has incorrectly interpreted existing law as not applying to texting. It wouldn't have made any sense, he opined, to have prohibited the act of watching a screen device while driving without also prohibiting the act of typing on a screen device while driving - one can't do either and still drive properly - and to have done so would have led to an absurd result, he asserted, and the court, in State v. Adams, neglected to recognize that legal point. He also offered his understanding that when the court reviews this issue further, it would be giving additional weight to the fact that the legislature had taken specific steps - via passage of HB 255 - to clarify existing law. REPRESENTATIVE HOLMES removed her objection to the motion to adopt Amendment 1. CHAIR GATTO, in response to a question, explained that the drafter has recommended that it would be better to include in the proposed statement of purpose both the specific case and the assertion that an incorrect decision was made in that case. REPRESENTATIVE GRUENBERG offered his belief that the phrasing used in Amendment 1 is proper - containing the correct terms of art - and would simply clarify that the legislature believes that a legal error was made in that court decision. CHAIR GATTO announced that Amendment 1 was adopted. 2:34:40 PM REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 2, labeled 27-LS1165\D.4, Gardner, 2/8/12, which read: Page 2, line 11, following "driving": Insert "or takes an affirmative act to access  such data" REPRESENTATIVE HOLMES objected. REPRESENTATIVE GRUENBERG predicted that Amendment 2 would make it easier to prosecute someone for the behavior of reading or typing a text message while driving. REPRESENTATIVE GARA, offering his belief that it's already implied under the bill's existing language, said "we don't want you fiddling around with your cell phone, while you're driving and moving, to access your text messages," and surmised that Amendment 2 would simply clarify that point further. REPRESENTATIVE HOLMES said that she objects to Amendment 2, both because of its proposed placement and use of the word, "or", seeming to indicate that one could either be driving or taking an affirmative action in order for the bill to apply, and because its language is overbroad and ambiguous, remaining unclear with regard to what would constitute an applicable affirmative action under the bill. REPRESENTATIVE GRUENBERG, acknowledging those points, withdrew Amendment 2. 2:44:12 PM REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 3, labeled 27-LS1165\D.5, Gardner, 2/8/12, which read: Page 1, line 1: Delete "and" Page 1, line 4, following "vehicle": Insert "; and providing for an effective date" Page 3, following line 20: Insert a new bill section to read: "* Sec. 6. This Act takes effect immediately under AS 01.10.070(c)." REPRESENTATIVE GRUENBERG explained that Amendment 3 would provide for an immediate effective date, which he characterized as an important thing to do. REPRESENTATIVE PRUITT objected for the purpose of discussion, and then removed his objection. CHAIR GATTO, after ascertaining that there were no further objections, announced that Amendment 3 was adopted. 2:45:26 PM REPRESENTATIVE GARA explained that passage of HB 255 - specifically Version D - is now also necessary in order to address the use of wireless technology by law enforcement and emergency response personnel; again, Version D's proposed 28.35.161(d) would provide an additional exemption for the viewing of authorized screen devices by law enforcement and other emergency response personnel when such persons reasonably believe that the information on such devices is necessary to respond to health, safety, or criminal matters. REPRESENTATIVE GRUENBERG relayed that to address a concern expressed by the court regarding the meaning of the word "verbal" [as it's used in the existing statutory exemption for certain equipment], the bill would also, via its proposed AS 28.35.161(c), change the term, "verbal communication" to the term, "voice communication". REPRESENTATIVE GARA, in conclusion, said, "I'm very serious about this bill - I think texting is dangerous - I think we should pass the bill this year." 2:48:31 PM RODNEY DIAL, Lieutenant, Deputy Commander, A Detachment, Division of Alaska State Troopers, Department of Public Safety (DPS), said that the DPS supports HB 255, and has no concerns with the proposed exemption for the authorized viewing of screen devices for emergency vehicles. Currently, he relayed, some DPS vehicles have "in-car video camera systems" and monitors that display some text information, and some DPS vehicles are being equipped with computers, which will display suspect and wanted- vehicle information, and occasionally dispatch sends photos of suspects or suspect vehicles to law enforcement officers via their cell phones. In response to questions, he acknowledged that failures of [installed equipment] have occasionally resulted in law enforcement officers having to use their cell phones or other forms of communication to speak with dispatch and other officers; and that it can be difficult for law enforcement officers to observe the proscribed behavior - it's more common to discover during the course of investigating a traffic accident that the proscribed behavior had occurred. Unless there is probable cause to believe that someone is texting while driving, law enforcement officers won't take any enforcement action, and if there is such probable cause, then it would be up to the individual law enforcement officer to determine whether the person actually was texting. 2:52:38 PM QUINLAN STEINER, Director, Central Office, Public Defender Agency (PDA), Department of Administration (DOA), in response to questions regarding the PDA's fiscal note, indicated that its analysis includes information he'd received from the DOL that the state's existing crime of texting while driving isn't always being prosecuted because of court interpretations, and offered, "my expectation is that with the explicit criminalization of texting and driving, you will see more enforcement, prosecution - and, of course, successful prosecution - which will have some fiscal impact on our agency, though it's impossible for me to determine what that would be." 2:54:54 PM MARK S. HALL, Chief, Anchorage Fire Department, Municipality of Anchorage (MOA), said simply that the Anchorage Fire Department supports HB 255. 2:55:18 PM RICHARD ALLEN, Director, Anchorage Office, Office of Public Advocacy (OPA), Department of Administration (DOA), relayed that the OPA is not anticipating that there will be a significant impact on its caseload as a result of passage of HB 255, and has therefore submitted a zero fiscal note. Speaking, then, as the parent of two young children who have to be driven around on Alaska's roads, he said he supports a ban on texting. 2:56:16 PM BOB GRIFFITHS, Chief, Cordova Police Department, City of Cordova; Executive Director, Alaska Association of Chiefs of Police, Inc. (AACOP), relayed that he and the AACOP extend their unqualified support for HB 255. 2:56:50 PM PATRICIA GRISWOLD, [characterizing HB 255's proposed changes as a start,] said she would prefer to see a complete ban on cell phone use while driving, considering such use to be more dangerous than driving under the influence because of the prevalence of cell phones, and mentioned that one of her sons was involved in a motor vehicle accident after which the driver of the other vehicle was heard speaking on a cell phone. 2:59:36 PM REPRESENTATIVE BOB HERRON, Alaska State Legislature, relayed that he'd been involved in a hit and run accident - while he was stopped at a stop sign, his car was struck from behind by another vehicle - and after the accident occurred he saw the driver of the other vehicle texting and continuing to text as she drove away. In conclusion, he offered his belief that texting while driving is an issue that needs to be addressed, and his hope that such behavior could be modified. 3:02:52 PM ALBERT JUDSON said he would like to speak in favor of HB 255 and any bill that would ban the use of cell phones and any other devices while driving. Mentioning that he was run over in 2007, and recounting some the details of that accident and the injuries he suffered as a result, he raised the issue of non- reporting/under-reporting; for example, when he was run over, there was no mention of it in the paper, but the day after he was run over, his dog was run over, and the paper ran a story about that. Statewide, he opined, there is lack of reporting about people being injured and/or killed, and he suggested that there should be an investigation to determine why. Other issues that need to be addressed, he opined, are the issue of accountability, particularly accountability [for causing] long- term injuries, and the issue of possibly expanding the statutory penalties for causing injury and/or death. In conclusion, he thanked the joint prime sponsors for introducing and promoting HB 255, characterizing it as being long overdue - a matter of life and death - and said he would like to see HB 255 pass, along with other bills addressing the issue of cell phone use while driving, adding that he did not know whether the driver who ran him over was texting at the time or merely talking on the cell phone. [HB 255, Version D as amended, was held over.]