Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

A BOSTON CRIMINAL LAWYER DISCUSSES MA MOTOR VEHICLE CELL PHONE USE LAWS

As you may be aware, there is a legislative effort underway today to change the laws regarding the use of cell phones while driving in Massachusetts.

Most people seem to be for it.

But is there really a need for it?

Attorney Sam’s Take On Redundant Criminal Statutes

The first statute, the one in effect now, was passed around a year ago. That law made it illegal for anyone to text while driving and illegal for anyone 18 years or under to use a cellphone at all while driving.

Apparently, folks are not satisfied with the results.

The National Transportation Safety Board has been pushing to outlaw all non-emergency cellphone use by drivers. They also want to make it extra illegal to operate a cellphone when operating within a school zone.

Let me ask you something…let’s say you were a police officer and you saw someone drive by juggling five golf balls while watching a television mounted on the dashboard and steering with his feet. Do you think you might stop that driver?

“Yes. Absolutely. That’s crazy!”

Well, why? I am unaware of any law in the Commonwealth that specifically outlaws driving with one’s feet or watching TV. Further, I have yet to see a JWD (Juggling While Driving) prosecution.

“Well, it is unsafe…isn’t it?”

I would certainly think so. The reason is that the driver is distracted and operating, at the very least, negligently. And that, indeed, is the problem with many drivers who talk on their cell phone while driving.

I have seen plenty of drivers fumbling with their MP3 players or choosing which CD to load into their car and, while arranging said entertainment, drift off into every lane other than the one they are purportedly in.

Gee, I am only a Boston criminal lawyer, but that sounds like a distracted driver to me. Does it really matter that they are not on their cell phone at the time?

Some proponents are suggesting that cell phones be off limits to drivers unless they are using a “hands free” device. This, too, makes me wonder about the thinking.

I would imagine that the objection to my talking on my cell phone while driving is that I will become distracted because I will be concentrating on my conversation. That sounds reasonable. But, why would I concentrate any less on the conversation simply because I am having it through use of a “hands free device” unless I am employing some kind of sign language in the discussion?

I was actually in favor of the law when it passed a year or so ago. I have seen these drivers become dangerous as they are playing with their phone. In fact, I have even been them from time to time.

I think the use of cellphones in cars while driving is enough of a dangerous item that there should be some preventive legislation controlling their use. However, we already have that law…just like we have the laws against distracted and negligent driving.

The laws on the Commonwealth’s books are often redundant laws. This is why, through the commission of one crime, one can often be charged with two or three more. It is unnecessary and, frankly, it tends to hurt the justice system’s credibility.

I do not know how many prosecutions have been brought to court as a result of drivers illegally using their cell phones. However, if the thought is that there has not been enough such prosecutions, perhaps by making the behavior “more illegal” is not the best approach.

I know that it is the approach that our politicians usually take, but, in case you have not noticed…our system is a bit of a mess. I have heard that one definition of insanity is to keep doing what you have always done and yet expect a different result from what you have always gotten.

Politicians demonstrate such insanity time and time again. Sometimes it seems almost as if they are more interested in the political splash of their “hard line” approach than actually fixing a given problem, doesn’t it?

Might I suggest…treating the laws that are already on the books a bit more seriously?

Might I dare go further and wonder if creating these new laws will merely be creating additional laws that can be ignored?

Just a thought.

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