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Burden of Proof

Distracted Drivers: Should Cell Phones be Outlawed?

Aired July 18, 2000 - 12:30 p.m. ET


ROGER COSSACK, CNN ANCHOR: A New Jersey town tells motorists to keep their eyes on the road, their hands on the wheel and their phones out of reach. Should cell phones and other driving distractions be outlawed? That's today on BURDEN OF PROOF.


ROSALYN MILLMAN, NHTSA DEPUTY ADMINISTRATOR: The driver's responsibility is to operate the vehicle safely. Distraction degrades driver performance. Multiple distractions and more complex distractions degrade driving performance even more.

MARK EDWARDS, AMERICAN AUTOMOBILE ASSOCIATION: The research tells us that somewhere between 25 and 50 percent of all motor vehicle crashes in this country really have driver distraction as their root cause. And on a daily basis, that's somewhere in the neighborhood of 4,000 to 8,000 crashes.

PATTI PENA, DAUGHTER KILLED BY DISTRACTED DRIVER: Do not use a hand-held phone while driving. Park the vehicle first.


ANNOUNCER: This is BURDEN OF PROOF, with Roger Cossack and Greta Van Susteren.

COSSACK: Hello and welcome to BURDEN OF PROOF. Greta is off today.

New technology makes it possible to talk, fax, watch TV and surf the Net from behind the wheel. The problem? Some people forget to focus on driving.

Marlboro Township in New Jersey is trying to put the brakes on driver distractions by becoming the latest U.S. community to ban the use of hand-held cell phones while driving. A 1997 study found that talking on the phone was almost as dangerous as driving while drunk.

Joining us from New York is Marlboro Township Council Vice President Barry Denkenson. And also joining us from New York is Gerald Celente of the Trends Research Institute. Here in Washington, Brian Jones (ph), constitutional law professor Viet Dinh, and Lynn Taylor (ph). And in the back, Jodie Briggs (ph) and Daniel Mosteller (ph). Let's go right to Barry.

Barry, tell us about the ordinance that your township passed and why.

BARRY DENKENSON, MARLBORO TOWNSHIP COUNCIL: Well, this ordinance will ban the use of handheld cell phones while driving a motor vehicle. The reason that I introduced the ordinance is because there have been a number of tragedies that have occurred causing death and significant injuries to drivers in accidents involving the use of handheld cell phones.

In fact, the catalyst for my bringing this forward was the CNN program "NEWSSTAND" which discussed the terrible tragedy of Patti Pena and her family where her 2 1/2-year-old daughter was killed as a result of a driver who broadsided their vehicle while using a cellular phone, handheld cellular phone, and failed to stop at a stop sign. The program was of extreme interest to me because Patti has started a crusade on behalf of the memory of her daughter to try and have legislation passed across this country banning the use of handheld cell phones.

COSSACK: Barry, it seems to me that in your ordinance -- and I read it this morning -- that what you have done is outlaw the use of a handheld cell phone, per se. In other words, if anybody is driving through your township and speaking on a handheld cell phone, they are violating the law without any proof that they're driving recklessly. In other words, you've said that you're talking on the phone, you're driving recklessly.

DENKENSON: That's absolutely correct. It's a primary offense, and we feel it's a distraction and we don't want to wait for an accident to occur. We hope that this will help in preventing those kinds of accidents, Roger.

COSSACK: Well, why did you then make an exception for people to be able to speak on the telephone or speak on a cellular phone that's not handheld? In other words, these kind that are either built into the dashboard or some other way, that's not a violation of your law.

DENKENSON: Well, in a perfect world, I think I would probably want to ban the use of all cell phones. But we don't live in a perfect world and I think that this is just a good first step in an effort to try and get legislation enacted, particularly in my home state of New Jersey where legislation is pending in the legislature in committee and lies dormant. And you need a first step to get started. And maybe down the road, either the cell phone industry will come up with better phones that will be safer for drivers to use or we will ban the use of cell phones entirely.

COSSACK: Barry, I think what your objection is -- and, you know, correct me if I'm wrong -- is what you're saying is, look, we don't want people driving in our township, at least, while they are distracted, while they're doing -- while they're thinking about something else. It seems to me that by putting that exception in, what you're saying is, you can still speak on the phone, which means that you may be thinking about something else, but your hands are on the wheel. What about the radio? What about eating in the car? What about feeding your child in the car or looking over your shoulder? I mean, aren't those -- don't those present the same problems?

DENKENSON: I get that question asked very frequently. There are other distractions, but the fact remains that the hard data that you referred to, the "New England Journal of Medicine" study, has indicated that the use of a handheld cell phone while driving increases the risk of an accident by at least four times. There isn't any other hard data, or there have not been any studies which have been done in relation to other kinds of distractions. I believe the federal government has some hearings this morning which are investigating other distractions. But until we get some hard data on other distractions, it's been proven that the use of handheld cell phones are a significant distraction and increase the risk of injury as a result of automobile accidents.

COSSACK: I guess, Barry, the questioning that I'm having for you is this. I mean, it's -- and I recognize what you're trying to do, but look: If you and I are sitting in a car and I'm driving and I'm talking to you and we're having a conversation, something as innocuous as that, it's clear that I am not concentrating 100 percent on my driving if I'm talking with you. Can you ban that? I mean, can you start arresting people for that?

DENKENSON: No, I don't think so, and I wouldn't want to. When I introduced this ordinance at our meeting a couple of weeks ago, I said that I was not interested in being intrusive. But the fact remains that the government has a right and a responsibility to enact laws or ordinances where there is a risk of injury as a result of particular kinds of conduct. Examples of that are drunk driving laws and seat belt laws in New Jersey.

So, in this particular instance, the study has shown that this kind of behavior, this particular kind of behavior, the use of a handheld cell phone, is a significant risk of injury. And so, therefore, I think we have to -- we need to enact legislation, we've done that, to regulate this kind of conduct.

COSSACK: All right, let's take a break.

Up next, has the car become the travelling office of the new millennium? Stay with us.


Starting next week, the Maricopa County Jail in Arizona will broadcast the booking of its inmates on the Internet. Sheriff Joe Arpaio is installing two video cameras to follow inmates through parts of the jail. Civil liberties advocates say the cameras are an invasion of privacy.


(COMMERCIAL BREAK) COSSACK: Good news for our Internet-savvy viewers: You can now watch BURDEN OF PROOF live on the World Wide Web. Just log onto We now provide a live video feed Monday through Friday at 12:30 p.m. Eastern time. And if you miss that live show, the program is available on the site at any time via video-on-demand. You can also interact with our show, and even join our chat room.


W. RILEY GAROTT, CHIEF, VEHICLE RESEARCH AND TEST CENTER/NHTSA: Conversation itself is the most prevalent single behavior associated with cellular telephone-related crashes. What this means is hands- free phones will not totally solve this problem.


COSSACK: From Brazil to Switzerland to Japan, countries around the world restrict the use of cell phones in cars. But in the United States, the march of technology has been louder than the calls for safety. Even while car manufacturers continue to offer potentially distracting new gadgets, no legislation has passed at the state level that would limit their use.

Gerald, I want to read to you some statistics before I ask you this question. There are 95 million wireless phone users, $40 billion a year in revenue, 44 percent of the drivers have cell phones in their cars, 7 percent of drivers have e-mail access and 3 percent can receive faxes in their car.

Gerald, is the genie out of the bottle? Is there any going back now? What does this tell us about ourselves?

GERALD CELENTE, TREND RESEARCH INSTITUTE: Well, it tells us a lot of things. First of all, let's look at the changes taking place where people are living. They're commuting longer distances than ever before, the roads are more congested than ever before, the automobile has become the virtual mobile work office. So in one aspect, the genie is out of the bottle. There is no turning it back. And as we look ahead in the trend-focus manner, you could envision virtually every technology that you have in the home being integrated into the automobile. Now, whether or not that's really practical is another story because, you know, they were talking about putting little ovens in your glove compartment so you could warm up your soup and eat it as you drive.

COSSACK: Gee, that's a great idea.

CELENTE: Well, that didn't happen.

DENKENSON: Sounds pretty dangerous to me.

CELENTE: But the point of all this is that, no, there's no turning it back because there's an overriding cultural issue on top of this, and this is, right now, America is in the fast-forward work mode. You mentioned some of those countries that have banned the use of cell phones while people are driving: France, Switzerland, the U.K. We're working nine full weeks -- work weeks more than they are in Europe. We're working 180 hours more a year than we were 20 years ago. There's no stopping Americans from working on this full-blast schedule, and technology is helping them do it.

COSSACK: Barry, I have always felt that if somebody would ask me to define law, one of the definitions I would give would be law tries to explain how we interact with each other and describe how we should -- and our culture interacts with each other. In light of what Gerald said, you know, how do you feel about what you have done in your township? I mean, don't you sort of feel like you're pushing that rock uphill?

DENKENSON: Well, I mean, there have been people who objected to this ordinance because they believe it's intrusive. I think there's another side to this argument, and that is the following: Government has a responsibility to protect its citizens, particularly when there are issues involving the public's safety, health and welfare. And I believe, along with my colleagues, that this is one of those issues.

Sure, technology is changing -- we're all aware of that -- the Internet is exploded, but it cannot interfere with the safety of our citizens, and this is an issue that has interfered with the safety of our citizens because there have been accidents, and they're only going to increase and we're going to get more and more of these kinds of tragedies if elected officials don't do what they're elected to do, and that is take responsibility and enact laws to protect citizens.

COSSACK: Gerald, and I think that Barry makes a good point, but if you extend out what you said, Gerald, you would say that the public, in effect, would say, we don't want those kinds of laws, city fathers and city leaders, you know, we want to be able to interact within our car because it's become our traveling office. Figure out a way that we can do this.

CELENTE: Well, exactly. And but there's another side, of course. As you well know, there's many sides to an issue. This is going to hit the public consciousness as the amount and the frequency of accidents continues to climb. Just as a woman started the whole crusade against drunk driving, probably the same thing will happen with the cell phone issue. So, in America -- and, again, you know, as a global forecasting group, we understand that business comes first. I mean, this is America. In these other countries, quality of life often comes first.

So it's going to be push and a pull. There's going to be a drive to get more technology, a drive by the cell phone and other interactive industries to get more into the automobile. At the same time, there's going to be a pull away from it from social groups.

COSSACK: All right, let's take a break.

Up next, do you have a constitutional right to talk on that cell phone or read the paper while driving? Stay with us.

(BEGIN Q&A) Q: On this day in 1969 Mary Jo Kopechne drowned when a car driven by Senator Edward Kennedy veered off a Chappaquiddick, Massachusetts bridge.

Kennedy didn't report the incident until the following morning. What was his plea in court?

A: Kennedy pleaded guilty to leaving the scene of an accident. He received a two-month suspended sentence and had his license suspended for a year.



COSSACK: A judge recently overturned a law in a Pennsylvania town banning cell phone use while driving. He ruled that it wasn't uniform with traffic laws statewide. Now similar laws in Ohio and New Jersey towns could also be overturned, and might even be unconstitutional.

OK, Viet, my constitutional law scholar friend, let's talk about what is constitutionally and what isn't. First of all, I want to take you back in a little time travel to maybe 50, 60 years ago, way before you were born, and I want to tell about this new thing they put in cars, it is called the radio. Is there any problem with that?

VIET DINH, CONSTITUTIONAL LAW PROFESSOR: Well, there is a social problem, I can imagine, of the same type of arguments that are being advanced by Gerald and by Barry, playing themselves out in 1920s, 1930s when this new innovation was being considered.

The constitutional problem comes down to one of division of powers, one of whether the federal government has the power to act, whether the state government has the power to act, or whether local ordinances may also enter into the fringe. And so the Pennsylvania statue simply says that state laws has preempted local ordinances, and uniformity is important in the state traffic laws, and local ordinances are preempted by that state law.

By the same token, if the National Highway Traffic Safety Administration, NHTSA, promulgates regulations, regulating the use of cell phone, then state laws that conflict with, or otherwise frustrate the achievement or the purposes of NHTSA, may also be preempted.

COSSACK: Let's talk about Barry's law. Now, Barry's township wrote a law that said, if you use a cell phone, a handheld cell phone within our town limits, you are guilty an offense. We don't have to prove that you were driving recklessly, we don't have to prove that, that it is enough just that you are using the phone. Do you think that's constitutionally up to muster?

DINH: I think it is constitutional as a matter of negative commerce clause. I don't think it infringes upon the right of interstate commerce, as other types of laws of this type may very well do. If Barry's other proposal, that is to ban the existence of cell phones in cars altogether were passed, that may raise more significance constitutional barriers.

COSSACK: What about the issue of not having to prove that you are driving recklessly, but you are just merely talking on the telephone. You know, some can do it and some would be driving recklessly.

DINH: Right, that challenge would go under the vagueness or the enforceability of the ordinances. If those vague issues -- issues of vagueness and due process can be ironed out, it seems to me it is no different from, say, a speeding law that says you cannot drive more than 35 miles an hour in designated streets. Of course, the devil is in the details, as you noted, whether or not a person has dialed while he was parked or whether was dialing while driving is a matter of enforceability and proof; whether or not he was driving recklessly because he was talking on the cell phone, or whether he is just a reckless driver those are the difficult issues in enforceability.

I can imagine, if a law holds up as a matter of preemption analysis or constitutional analysis, these types of challenges will feature in the forefront.

COSSACK: Barry, what are you going to do in terms of people driving through your town? It seems to me that, is your police force going to be giving citations to everyone who is speaking on a cell phone?

DENKENSON: Well, right now, we are taking it slow. What we've done is we had a meeting actually last night to put together a plan of implementation with the police department administration and our elected councilpeople. And so what we are going to try and do is, first, educate the residents of our township. We are not out to start a witch-hunt and arrest people because they are on cell phones.

We would prefer to have this ordinance act as a deterrent. First, we have to put up signs at each of the boundaries of ingress and egress to our township, and we are going to do that over the next couple of weeks. And we are also going to try and educate the residents of our township about this law, and then we will start to enforce it with our police department.

COSSACK: Gerald, predict the future for me. Is this -- are we going to see more laws like what Barry's township has passed? or are we going to an increase in the use of the traveling office?

CELENTE: We are going to see an increase in the use of the traveling office. There's no question about it. Number two, there is no question about people driving longer times to commute, as they pull further and further into the suburbs and so-called ex-urban areas. And thirdly, they are going to be traveling longer times because of more congestion on the highway, as population increases. It is going to go another 120 million people in the next 50 years.

As far as the laws go, again, as a trend forecaster, all I can say is that, having monitored different laws that seemingly infringe upon people's individual or constitutional rights, and I'm not an attorney. When I look at the drunk driving law, there's a perfect example. You have the lobbying interests from the alcohol businesses saying, you know, keep pushing it back. But enough people got killed where it all of a sudden became a national issue. If the figures are correct with what's going on with cell phone use, that same critical mass of citizen outrage may bring this to a head.

COSSACK: All right, Viet, I'm sorry, but unfortunately that's all the time we have today. Thanks to our guests, and thank you for watching.

Today on CNN's "TALKBACK LIVE": is the straight pride movement legitimate or intolerant? That's today at 3:00 p.m. Eastern, noon Pacific.

And we'll be back tomorrow with another edition of BURDEN OF PROOF. We'll see you then.



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