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Law to ban texting while driving faces challenge

Posted: December 26, 2011 - 12:03am

JUNEAU — Alaska’s intended ban on texting while driving is facing a legal challenge, with a magistrate in Kenai saying the Legislature should have been explicit if they truly meant to prohibit the activity.

The decision this month by Magistrate Jennifer Wells follows challenges to charges under the law in the Fairbanks area.

A training judge in Fairbanks has advised magistrates there not to accept cases involving texting while driving because of what was viewed as an exception in the law for cell phones used for “verbal communication,” Deputy Attorney General Rick Svobodny said.

“I have a problem with that,” he said, adding: “Magistrate judges should make their own choices.”

Lawmakers will need to decide whether they need to strengthen the law, to make a texting ban explicit. Rep. Les Gara, D-Anchorage, said the quickest fix would be adding language to a crime bill.

“The Legislature’s intention was to cover texting,” he said; indeed, since the bill’s passage in 2008, it has been seen that way by many.

But he concedes the law could have been written more clearly.

The law refers to driving with a “screen device operating.” It never mentions text messaging and does not apply to cell phones used for verbal communication or displaying caller ID information. Alaska does not ban or restrict use of cell phones while driving though bills that would do that are pending in the Legislature.

Gara said specific types of technology were not named in the measure because technology is always changing. Rep. Max Gruenberg, D-Anchorage, one of the texting bill’s backers, said it took several years for the measure to pass, as it did. He said he would hate to have to go through the fight again, and believes it’s “loud and clear” that the state bans texting while driving.

The Kenai case involves Tyler S. Adams, 21, who was charged in May with texting while driving. Adams sought to have his case dismissed, which Wells did in October citing the ambiguous language in the law. Earlier this month, declined to reconsider her decision.

The state, in seeking that reconsideration, faulted her interpretation of “verbal,” suggesting it referred to spoken, not written, communication - and not a blanket exception to the law for texting since the device can be used for verbal communications. It also noted a press release from Gruenberg touting the law as making it a crime to watch a movie or text while driving.

Wells wrote that this caused concern that she had misunderstood the legislative history, and examined it further. Aside from the press release, she said the strongest support for the state’s interpretation of legislative intent is subsequent legislative analysis. During debates on cell phone bans, for example, she noted that several lawmakers and others made clear their belief that the law bans texting while driving.

“Whether the 25th Legislature did, indeed intend the statute to prohibit texting, or whether the statute has gotten that reputation because lawmakers and law enforcement wish this were true, is perhaps irrelevant,” she wrote in her Dec. 1 decision. Since the law creates felony and misdemeanor penalties, “it is particularly important that the statute be clear,” she wrote.

She said California has a law similar to Alaska’s aimed at potentially distracting screens. It has another, she said, that refers to “writing, sending or reading text-based communication” while driving.

“If the Alaska legislature wanted to prohibit texting, then it should have, and could have, clearly said so, just as California did,” she said.

The state is appealing Wells’ decision.

Sen. Hollis French, D-Anchorage, and chairman of the Senate Judiciary Committee, said if there’s a need for the law to be “airtight,” it probably should be.

He said he recently called the police on a man he saw at a stoplight, tapping away on a laptop nestled between this stomach and the steering wheel. After relaying the story on Facebook, about 90 percent of the comments were supportive, he said.

“I think it’s one of those things, people are getting more and more aware of the problem all the time,” he said.

Svobodny said about 10 cases have been brought under the law in Fairbanks, including six convictions. He said he’s not aware of this being an issue elsewhere in the state.

He noted that anyone who drives in a manner that creates a danger to the community can still be charged with reckless driving.

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