New Jersey's Distracted Driving Bill and Its Disturbing Implications for Probable Cause

USA Today reports:

A bill under consideration in the state Legislature calls to prohibit "any activity unrelated to the actual operation of a motor vehicle in a manner that interferes with the safe operation of the vehicle on a public road or highway." That means no cup of coffee for those sitting in traffic, no munching on that breakfast burrito, no time to groom. (No, the law does not target coffee verbatim.) 

The bill is meant to target distracted driving, which plays a role in thousands of fatal crashes in the state each year. At least 3,179 fatal crashes were attributed to distracted driving in 2014, according to the state's Division of Highway Traffic Safety website. Distracted driving played a role in nearly 800,000 crashes between 2010 and 2014.

Here is a link to the bill itself. The new section the bill would create reads:

2. (New section) a. An operator of a moving motor vehicle shall not engage in any activity unrelated to the actual operation of a motor vehicle in a manner that interferes with the safe operation of the vehicle on a public road or highway.

b. A person who violates this section shall be fined: 

(1) for a first offense, not less than $200 or more than $400; 

(2) for a second offense, not less than $400 or more than $600; and 

(3) for a third or subsequent offense, not less than $600 or more than $800. 

For a third or subsequent violation, the court, in its discretion, may order the person to forfeit the right to operate a motor vehicle over the highways of this State for a period of 90 days. In addition, a person convicted of a third or subsequent violation shall be assessed three motor vehicle penalty points pursuant to section 1 of P.L.1982, c.43 (C.39:5-30.5). 

A person who has been convicted of a previous violation of this section need not be charged as a second or subsequent offender in the complaint made against the person in order to render the person liable to the punishment imposed by this section on a second or subsequent offender, but if the second offense occurs more than 10 years after the first offense, the court shall treat the second conviction as a first offense for sentencing purposes and if a third offense occurs more than 10 years after the second offense, the court shall treat the third conviction as a second offense for sentencing purposes. 

c. Except as provided in subsection b. of this section, no motor vehicle penalty points or automobile insurance eligibility points pursuant to section 26 of P.L.1990, c.8 (C.17:33B-14) shall be assessed for this offense. 

d. A law enforcement officer who issues a summons for a violation of this section shall record on the summons the specific nature of any distracted driving behavior observed.

3. This act shall take effect on the first day of the third month after enactment.

The bill's broad language of "activity unrelated to the actual operation of a motor vehicle in a manner that interferes with the safe operation of the vehicle" would likely give probable cause to any vehicle stop in which an officer sees a driver doing anything other than driving the vehicle. Eating a snack, drinking anything, engaging in animated conversation with a passenger -- all could plausibly fall under this law's broad language.

Admittedly, I suspect that many, if not most, stopped under this law will be warned rather than ticketed. But the broad language of this law would allow officers to justify traffic stops in just about any situation where they see the driver engaging in any non-driving behavior. This grant of substantial discretion may exacerbate racial disparities in traffic stops and could contribute to a disproportionate prosecution of racial minorities for crimes discovered following the stop, such as driving under the influence of alcohol or drugs.

I suspect that the "unfettered police discretion" concern will not garner many votes in opposition to this bill. But perhaps this argument, combined with the votes of those who want to drink coffee and drive, will prove to be enough to defeat this broad piece of legislation.

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