THAT particular change is not worthy of mention in our legislative updates, JB, but we do discuss two changes to the Transportation Code that related to the use of wireless communication devices by drivers. Come to one of the seminars this summer to find out more!
Posts: 2396 | Location: TDCAA | Registered: March 08, 2002
It's my belief after years of talking about this - including making and reading lots of posts on here - that many people simply don't WANT to acknowledge the risks associated with cell-phone use while driving. The research is there, but people ignore it. It would inconvenience them. They like talking while they drive. Most of the time they manage to do it safely (much like speeders? or intoxicated drivers?) so they convince themselves that whatever slight risk might exist doesn't exist in THEIR cases.
This article references the NHTSA research and a few other conclusions, which are apparently being hidden from view somewhat:
OK, you arrive in a strange town at the airport. You walk outside and catch a cab. As you drive away, the driver picks up his cell phone and starts chattering to someone. How many of you want to tell him to hang up the phone and drive? And, don't you do that because you realize he is less likely to have a wreck and kill you if he isn't talking on a phone? Why ignore that if it is you driving?
It's the "I'm a better driver than everyone else" fallacy. Sure, some people really ARE better drivers that everyone else. But most aren't; and besides, driver inattention due to mental distractions has nothing to do with driving skill.
Still, behaviors that we shun when we see others doing it - is she putting on MAKEUP on the freeway? Is he really eating a TACO and steering with his elbow? - we seem to think we're capable of.
And maybe sometimes we are. But just like you never know when you're going to have a wreck and be glad to have your seat belt on, you never know when you might zone out during a conversation and drift into another lane or miss a car coming right at you. I realized the dangers of cell phone use when I would arrive somewhere after driving while talking on the phone, and notice that I could not recall whole portions of my trip! Clearly much of the brain gets caught up in the conversation and therefore has less ability to pay attention to the surroundings. And that's exactly what the research shows.
Posts: 114 | Location: Bryan, Texas, USA | Registered: January 02, 2003
Am I missing something? The article states that the new state law preempts the local ordinance and now drivers can use hands-free devices in West U again. However, isn't it permissible for a municipal ordinance to be more restrictive than a state law?
Posts: 1089 | Location: UNT Dallas | Registered: June 29, 2004
JB, thank you for directing me to that case. I have some questions, though, about how it would apply to the West U situation. First, I am going to make an assumption (granted, I may not be justified in doing so, but please play along) that West U is a "home rule city" as described in the Texas Constitution. Of course, if it is not, then there would be a different analysis, but many home rule cities have similar ordinances. The Chacon case states:
quote: Home rule city ordinances are presumed valid. Sanchez, 81 S.W.3d at 796. A state law preempts a home rule city ordinance only to the extent the state law is irreconcilably inconsistent. Id. That the Legislature has enacted a law addressing the subject matter in question does not mean the subject matter [**7] is completely preempted. City of Richardson v. Responsible Dog Owners of Texas, 794 S.W.2d 17, 19 (Tex. 1990). The state law and city ordinance will not be held "repugnant to each other" if the court can reach a reasonable construction that leaves both in effect. Sanchez, 81 S.W.3d at 796. And, if there is no conflict, the ordinance is not void. Responsible Dog Owners, 794 S.W.2d at 19.
If the new state law says effectively that you may not use a wireless communication device in an active school zone, unless using a hands-free device, but the municipal ordinance goes one step further and restricts even hands-free devices, it simply makes it more restrictive. There does not necessarily seem to be an irreconcilable difference. A court could reach a reasonable construction that West U declined to extend the permissive use of cell phones that the state granted.
In Chacon, the issue was that the municipal ordinance was less restrictive, at least in terms of punishment. That the state legislature mandated a higher punishment for the violations was in direct conflict with a lesser punishment at the municipal level. I'm just asking, because I have not fully researched this aspect, but is there anywhere that the legislature has stated with "unmistakeable clarity" that they intend to usurp the power of the local governments to regulate the use of wireless communication devices in school zones? From the Chacon dissent:
quote: If the State of Texas intends to preempt an area of regulation, including a subject matter usually encompassed by the broad powers of a home-rule city, it must do so with "unmistakable clarity." Dallas Merchant's, 852 S.W.2d at 491. In Dallas Merchant's, the supreme court decided the passage of the Texas Alcoholic Beverage Code by the Texas Legislature prevented the City of Dallas from enacting ordinances regulating the areas where businesses would be allowed to sell alcohol. The court noted that section 109.57(b) of the code stated as follows:
It is the intent of the legislature that this code shall exclusively govern the regulation of alcoholic [**17] beverages in this state, and that except as permitted by this code, a governmental entity of this state may not discriminate against a business holding a license or permit under this code. Dallas Merchant's, 852 S.W.2d at 491. Given the unmistakable clarity of the Legislature's intent, the court held the city ordinances to be invalid as preempted by the State. Id. at 491, 493.
Here, a plain reading of section 243.001(b) demonstrates with "unmistakable clarity" the Legislature did not intend to preempt regulation of sexually oriented businesses. "This chapter does not diminish the authority of a local government to regulate sexually oriented businesses with regard to any matters." TEX. LOC. GOV'T CODE ANN. � 243.001(b) (Vernon 2005).
Posts: 1089 | Location: UNT Dallas | Registered: June 29, 2004
Stated differently, Robinson contends that the prohibition of topless dancing at an alcohol-serving business (Ordinance No. 2386) is a stricter standard than the licensing and internal regulations applicable to businesses that feature topless dancing but do not serve alcohol (Ordinance No. 2414), and therefore, such prohibition violates section 109.57(a), (b). We disagree.
For the rest of the discussion, see 936 S.W.2d 413.
An assistant fire chief is suspended without pay for causing a minor collision while he was driving while he was on his cell phone KLBJ Newsroom 8/18/2009
Fire Chief Rhoda Mae Kerr has suspended assistant fire chief George Blackmore for 4 hours without pay for causing a minor collision while he was on his cell phone while driving a department vehicle.
Blackmore was also reading an email on his Blackberry when he crashed into the back on another vehicle. Chief Blackmore stated in a memo, that he was driving on Hwy. 290 service road when he stopped at an intersection. He then proceeded to read his Blackberry email. When traffic began to move he looked through his peripheral vision and let his foot off the brake slamming into the back of another vehicle. Chief Blackmore has admitted that he was momentarily distracted while reading the email. AFD policy mandates that while driving an AFD vehicle, there will be no use of cell phones unless the cell phone is in "hands off" mode.
Three other apartments in the building are fitted with the same make and model oven: Maytag Model CGR1425ADW. "My phone turned on all of them," Mr. Melnikov reported. "One apartment had a General Electric. It didn't work on that one."
Interestingly, I received an email from a state university today that this was going into effect and covered the boundaries of their campus. My reading of the law, as filed, does not agree. Specifically, a university is not a primary or secondary school (it is an "institute of higher education"), and the definition of "school crossing zone" in Government Code 541.302 has a strict definition that only includes "a public or private elementary or secondary school" and HB 55, as passed, states "a school crossing zone, as defined by Section 541.302,Transportation Code," so by the letter of the law a university campus is *not* covered by this law.
Am I right, or do I misunderstand something? Doesn't this only apply to school zones for K-12 schools?
Posts: 22 | Location: Central Texas | Registered: July 29, 2003
Now, y'all remember that "Keep'n it Wierd" Austin was first:
The Austin City Council unanimously agreed Thursday to establish a ban on text messaging while driving and to require a three-foot driving distance between vehicles and other road users [like salamanders?], such as bicyclists and pedestrians.