Interlock Devices — a Violation of Distracted Driving & New Electronic Device Laws?Jonathan Rands
Is A Department Of Licensing Required, or Court Ordered, Interlock Device A Violation Of Washington State Laws Regarding "Distracted Driving," Or The Newest "Electronic" Device Law?
Is a Department Of Licensing required or court-ordered Interlock Device a violation of Washington State laws regarding "distracted driving," or the newest "electronic" device law?
After much debate and the effective date, Washington Motorists are now subject to the following two statutes:
1. Dangerously Distracted Driving: RCW 46.61.673
(1)(a) It is a traffic infraction to drive dangerously distracted. Any driver who commits this infraction must be assessed a base penalty of thirty dollars. (b) Enforcement of the infraction of driving dangerously distracted may be accomplished only as a secondary action when a driver of a motor vehicle has been detained for a suspected violation of a separate traffic infraction or an equivalent local ordinance. (c) For the purposes of this section, "dangerously distracted" means a person who engages in any activity not related to the actual operation of a motor vehicle in a manner that interferes with the safe operation of such motor vehicle on any highway.
A secondary action means that you may not be stopped for the infraction, but once stopped if witnessed by the officer then you may be cited for this. Secondary infractions frequently become elevated to primary infractions over time. An example of this is Washington States seatbelt law. It originated a secondary infraction and then after time became a primary infraction. When secondary, if you were stopped for a speed limit violation and when the officer walked up to the car, if it was obvious you were not wearing a seatbelt then the infraction was enforceable. After not too many years the legislature elevated it from secondary to primary.
Primary infractions often are the basis for vehicle stops, which lead to DUI investigation and then DUI arrests.
The Department Of Licensing (DoL), and the Courts at some point in almost every DUI case require an Ignition Interlock on an arrestees vehicles. If a first arrest the DoL requires an interlock after the DoL suspends or revokes the driver's license of those who provide an over .08 breath sample or who refuse pursuant to a "sustained" administrative action. Everyone convicted of a DUI is required by DoL to have an IID for at least 1 year after any suspension is imposed due to that DUI conviction.
If you have previously been arrested for a DUI, and subsequently arrested a second time, the Court orders the Defendant to install and maintain an IID, and if they fail to do so, then the DoL will suspend the person's license until they comply with the court order.
Having said all this, if stopped for a primary infraction, and using the IID during the stop because the device requires a "random" sample you can now be cited for the infraction above.
2. Using a Personal Electronic Device While Driving: RCW 46.61.672
More importantly, consider the other Washington State Statute:
- A person who uses a personal electronic device while driving a motor vehicle on a public highway is guilty of a traffic infraction and must pay a fine as provided in RCW46.63.110(3).
- Subsection (1) of this section does not apply to:
- A driver who is using a personal electronic device to contact emergency services;
- The use of a system by a transit system employee for time-sensitive relay communication between the transit system employee and the transit system's dispatch services;
- An individual employed as a commercial motor vehicle driver who uses a personal electronic device within the scope of such individual's employment if such use is permitted under 49 U.S.C. Sec. 31136 as it existed on July 23, 2017; and
- A person operating an authorized emergency vehicle.
- The state preempts the field of regulating the use of personal electronic devices in motor vehicles while driving, and this section supersedes any local laws, ordinances, orders, rules, or regulations enacted by any political subdivision or municipality to regulate the use of a personal electronic device by the operator of a motor vehicle.
- A second or subsequent offense under this section is subject to two times the penalty amount under RCW 46.63.110.
- For purposes of this section:
- "Driving" means to operate a motor vehicle on a public highway, including while temporarily stationary because of traffic, a traffic control device, or other momentary delays. "Driving" does not include when the vehicle has pulled over to the side of, or off of, an active roadway and has stopped in a location where it can safely remain stationary.
- "Personal electronic device" means any portable electronic device that is capable of wireless communication or electronic data retrieval and is not manufactured primarily for hands-free use in a motor vehicle. "Personal electronic device" includes, but is not limited to, a cell phone, tablet, laptop, two-way messaging device, or electronic game. "Personal electronic device" does not include two-way radio, citizens band radio, or amateur radio equipment.
- "Use" or "uses" means:
- Holding a personal electronic device in either hand or both hands;
- Using your hand or finger to compose, send, read, view, access, browse, transmit, save, or retrieve email, text messages, instant messages, photographs, or other electronic data; however, this does not preclude the minimal use of a finger to activate, deactivate, or initiate a function of the device;
- Watching video on a personal electronic device.
An interlock device is handheld. Stores or saves data, transmits data, is not handsfree capable and is equipped with a GPS and camera to record the face of the person using. The device requires a test to start the car and random "rolling" testing. It has an LCD (liquid crystal screen/display) and a person is required to look at it and follow some directions for the timing of use and actual use.
As a result of all these things, it is squarely within the purview of the law and in some way shape or form is mandated by the law or the DoL.
Since 2004, an IID has been required in increasing frequency to the point it is currently being ordered by the court or DoL in our State and it has always been my opinion and the opinion of many of my colleagues that the IID is dangerous, and an improper DUI countermeasure because if you believe the "distracted driving" statistics driving while distracted is MORE dangerous than DUI. Unfortunately, it will likely take a vehicular fatality before the legislature takes notice. A case of distracted Court ordered IID use occurred recently in late 2017 in Texas just such a tragedy occurred.
The story was reported by Fox News and mostly republished below.
A Texas woman died after being hit by a non-impaired driver who was taking a breathalyzer test while operating his vehicle. Alexis Butler, 18, was backing her car out of a driveway on Nov. 10 when the passenger side of her car was hit by a pickup truck. An investigation by the Arlington Police Department didn’t find any track marks from the 31-year-old unidentified driver on the road that would indicate he tried to stop the car. The driver reportedly told police that he couldn't see Butler’s car because his eyes were off the road while performing a breathalyzer test on a court-ordered device "for three to four seconds." Police said he was non-impaired at the time. The ignition interlock device prevents a vehicle from starting if the driver is found to have been drinking. "Number one thing we’ll look at is tracking down the original court order to read exactly what it said," Lt. Chris Cook stated. “And more importantly for us, as a police department, is to determine what the manufacturer recommendation is as far as the guidelines in how to operate this type of equipment. "It’s very concerning to us, as a police department, that an individual may be operating some type of ignition equipment while they’re in a moving vehicle," Cook said. The department, according to KXAS, said even though the driver hadn’t been drinking, he could still be charged.
The anti-DUI mechanism of IID’s quickly swept our State from 2004 to current date, and has mostly been ignored in terms of the dangers it poses due to the focus on it being the perfect antidote to DUI, because while may indeed it prevents DUI, it simultaneously creates a driving danger to others that is identical.