Shut up and drive?

Washington state recently became the first state to ban text messaging while driving. House Bill 1214, signed into law in May, will make it a secondary traffic infraction to read, write or send a text message through a wireless communications device while operating a moving motor vehicle. The new law does not apply to persons operating an authorized emergency vehicle, or others reporting illegal activity, summoning emergency or medical help, or to otherwise prevent injury to persons or property. Enforcement, which will begin when the new law becomes effective next January, will be limited to ticketing as a “secondary offense,” which means that you can only be ticketed for it if you are first pulled over for another suspected violation of the law.

While the new law does not apply to persons reading or dialing a phone number or name into a wireless communications device for the purpose of making a phone call, wireless phone users are still forbidden from texting while driving. Moreover, with the passage of a different bill, the legislature ended its years-long debate over a ban on driving while talking on hand-held cell phones.

Senate Bill 5037, effective July 1, 2008, also makes it a “secondary offense” for a person to hold a wireless communications device up to their ear while operating a moving motor vehicle. It provides exceptions similar to House Bill 1214, and most controversially, it excepts those using a wireless communications device in “hands-free mode.” This means that drivers may continue to use their cell phones while driving, so long as they use a speaker phone, headset or earpiece.

According to the Insurance Information Institute, the theory that hands-free sets are safer has been challenged by findings in several studies. Some suggest that talking on a cell phone while driving is as dangerous as driving drunk, even if the phone is a hands-free model. Others found that drivers using hands-free cell phones had to redial calls 40 percent of the time, compared with 18 percent for drivers using hand-held sets. In a recent update, the Insurance Information Institute stated: “Businesses are increasingly prohibiting workers from using cell phones while driving to conduct business. In July 2004, the California Association of Employers recommended that employers develop a cell phone policy that requires employees to pull off the road before conducting business by cell phone.”

The issue is one that employers should consider carefully. There were 34 tort cases between 1990 and 1999 involving cell-phone related accidents. That number will increase significantly now that there is legislation prohibiting use of hand-held cell phones while driving. If your company does not have a wireless phone policy, it is time to implement one. Consider whether to prohibit wireless use altogether while driving, or simply to require that employees use hands-free devices while making any such call. With emerging technology, inexpensive wired earpieces have given way to higher quality speaker phone and Bluetooth capabilities on most phones. If you have not yet tried a wireless Bluetooth earpiece, you are in for a pleasant surprise. They offer clear connections and an impressive range. However, they will do little to avoid the distractions associated with dialing or conducting business while operating a motor vehicle.

For assistance in implementing or revising a wireless communication policy for your office, consult your attorney and your information technology director. Also consider consulting your insurance broker to determine whether you will be adequately protected in the event an employee gets in an accident while conducting business on the road. A little advance planning now could help you avoid significant exposure in the future.

John R. Bachofner is a shareholder in the Vancouver office of Bullivant, Houser, Bailey PC, a west coast regional, multi-practice law firm with six offices in four states. Bachofner utilizes technology to enhance his practice of bankruptcy, creditor’s rights, commercial litigation and business law in both Oregon and Washington. He can be reached at 360-906-6340 or john.bachofner@bullivant.com.

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