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March 2019
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Filed under: General
Posted by: Jim Gray @ 10:16 pm


             So now we have a new law in California that prohibits people from driving a motor vehicle while talking on hand-held cellular telephones.  Okay, I do not argue that holding a cell phone 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 cell phone 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, how about 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 cell phone 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 that we should have fewer laws and instead hold people accountable for the results of their actions.  So if drivers negligently run into you while they are eating a fast-food hamburger, lighting a cigarette, text messaging, or talking on a cellular telephone, 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 that their laws will actually protect the public, then they have failed us.  I think 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 that 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 that testify less accurately, or even untruthfully.  But as U. 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 that 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 JimPGray@sbcglobal.net or at his blog at JudgeJimGray.JudgeJimGray.com.


  1. E Says:
    Another well written article! I think you left one BIG one out. How about those who put make-up on while driving! Think about this one folks. For those of you who do this, you know exactly what I am talking about. You’re looking in your rear view mirror. Traffic is moving on your left and on your right. Is your lane so special that the light stays red until you finish applying your make-up? Or are you so focused on applying your make-up while looking at your rear view mirror you forget you are looking in the mirror and see that the light is red (behind you!!)so you stay put. So, people do other more serious stuff than talking on the cell phone. This law was not thought out enough. I have seen several near misses and not so near misses all due to people using their cell phones for other reasons then just talking. People texting, playing games, etc, all seen from looking from my car to theirs. This new law really needs to be re-thought out and amended before more people get hurt or hurt others from doing more than driving with the phone to their ear. Okay, now that I have typed this entire message via my phones internet, do you think I should hang up and drive now? ONLY JOKING, but I have seen it happen.

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