Hunting for loopholes in Washington state’s driving-while-phoning-or-texting law


Last week, a law went into effect in the state of Washington which makes driving while texting or using a hand-held phone a primary offense, meaning that you can be pulled over for doing it. (Previously, it was a secondary offense, which means that the officer must have some other reason for pulling you over.)

One of my colleagues studied the new law when it was passed and believes he found a loophole. According to RCW 46.61.667 subsection (2)(c)(i), driving-while-phoning is legal if the driver is using the phone to report illegal activity. My colleague points out that the law does not say whom you have to be reporting the illegal activity to.

Therefore, my colleague concludes, if you call your friend while driving, make sure you say, "I'd like to report illegal activity, specifically, I'm talking on a phone while driving." This sentence, according to my colleague, makes your phone call fall under the subsection (2)(c)(i) exception, and you're in the clear!

Yeah, good luck with that one.

Comments (45)
  1. Bill says:

    "Subsection (1) of this section does not apply to a person operating: A moving motor vehicle while using a hearing aid."  Get a hearing aid and stay legal!

  2. John says:

    Bill: I think that section only exempts use of a hearing aid (a wireless communications device), not use of a cell phone while using a hearing aid.

  3. Marquess says:

    But if you are reporting yourself talking on the phone as an illegal activity to make it a legal activity, you are no longer reporting an illegal activity, therefore it is an illegal activity.

    I'll go back to dividing by zero now.

  4. Henrik says:

    But if he uses that loophole the activity he is reporting is no longer illegal and thus subsection (2)(c)(i) is no longer in effect, making his phone call illegal.

  5. Mike says:

    @John

    Home phones and newer cell phone receivers interface with telecoils in many hearing aids.  As far as I know, hands free devices do not include this interface, so it may actually be a real exemption for people with hearing aids.  (Before my IT life I did hearing aid QC.)  

  6. @Henrik: there's no problem, the officer will go in an endless loop trying to evaluate if it's legal or not; eventually, the whole thing will fall in prescription (or, at least, it would here in Italy), and you'd get away with it.

    Just remember to hard-reboot the officer at the end of the whole thing, or he will remain blocked in livelock.

  7. Or, if the evaluation is recursive, eventually the stack space will be exhausted, and in such circumstances, as we all know, the process ends suddenly, without any messages, fines or anything else.

  8. Nish says:

    What about looking at the portable GPS?

    Applying lipgloss?

    Putting eye-shadow using both hands and looking into the mirror on the pull out sunshade completely taking your eyes off the road?

    Eating a burger with both hands? And with some of the double/triple size burgers, until you consume 50% of the burger, it's big enough to block your vision.

    What about all these, huh?

    [note : question's not to Raymond, but to the Washington police]

  9. Karl says:

    Another fun exemption: it only applies if you hold your phone to your ear. Holding it in front of your eyes? Fine. Holding it with the speakerphone active? Fine.

  10. Jim Glass Jr says:

    Matteo, the office doesn't have to decide if the law is legal or not. You get a date to talk to the court if you have complaints about your ticket. And that too is very annoying. Better to use the bluetooth earpiece if'n you ask me. It's just too easy.

  11. Bill says:

    @John: That may be what they meant, but it's not what they said.  But I agree with Jim Glass: hands-free mode is a better bet.

  12. Falcon says:

    Over here, in Victoria, AUS, since late 2009, the phone's not actually be allowed to be held or resting on your body, so the speakerphone-in-hand option is out of the question.

    More details at http://www.vicroads.vic.gov.au/…/MobilePhonesandvisualdisplayunits.htm

  13. Joshua says:

    "Actively avoiding obeying the law." Judges don't always put up with technical loopholes that are being abused to cancel the purpose of the law.

  14. Chris says:

    Nish: All of those can be covered by the negligent driving laws, which is mentioend at the bottom of the article. (Eating and applying lip gloss are called out specifically)

  15. Mike says:

    Using a mobile phone while driving is more dangerous than drink driving.

    news.bbc.co.uk/…/1885775.stm

    http://www.timesonline.co.uk/…/article4776063.ece

    In other words, don't drink and drive and get off the bloody phone!

  16. -dan says:

    I see cops driving and talking all the time on their cells – can I call that in?

    I personally think it's all crap, know your limitations and drive accordingly … but people never do

    Anyway, I used to hate to have to use my 'hands free device'  but now I prefer using it than not. We've had this law a while longer in NewJersey. After going through 3 bluetooth ear pieces I realized I like the low tech wired ones.  Now if only they would use better quality wire so the damn things would last longer.

  17. Anonymous Coward says:

    From what I've read in the papers, judges usually take a rather dim view of people who try to pull such defences.

  18. Gabe says:

    If talking on a phone while driving is so dangerous, how come we don't hear about all those people killed by phoning drivers? Surely there are more people phoning while driving than drinking and driving, so shouldn't more people be killed by these menaces? Where are the statistics?

  19. Andrew says:

    I like the idea of digging for loopholes in this way (though only as an exercise, not as an actual defense).  It maps very nicely to the job a software tester does when evaluating a new feature or API set.  It makes me wonder if there's a analogous job in the legislative world and whether we'd benefit from approaching it with the same rigor as we do in software.

  20. Julian says:

    "Illegal activity [by others]" I guess is the implicit qualification.  I sometimes like to thing that there are analogies between computer programming and legal document "programming".

  21. No One says:

    Simple fix for the officer: *crash* "Did you know you're driving with a headlight out?"

  22. njkayaker says:

    ohn: "I think that section only exempts use of a hearing aid (a wireless communications device), not use of a cell phone while using a hearing aid."

    No, the way the law is worded, the device clearly isn't the hearing aid. It's clearly a device held with your hand to your ear. Furthermore, a hearing aid isn't a "wireless" (radio) device.

    "(1) Except as provided in subsection (2) of this section, a person operating a moving motor vehicle while holding a wireless communications device to his or her ear is guilty of a traffic infraction"

    Mike: "Home phones and newer cell phone receivers interface with telecoils in many hearing aids.  As far as I know, hands free devices do not include this interface, so it may actually be a real exemption for people with hearing aids.  (Before my IT life I did hearing aid QC.)"

    This make sense.

    Nish: "What about all these, huh?"

    All of these are forms of "careless driving". That is, while are not explicitly illegal, they are implicitly so (if they effect your driving).

  23. JJJ says:

    "Illegal activity [by others]"

    That qualification just means you have to report to the person you're talking to that they are committing a crime.  The crime of being an accessory or accomplice to you talking on the phone while driving.

  24. Ens says:

    @Nish

    Well, I'll answer from Ontario law, because I don't know Washington law, but most of those are very much illegal where I come from.  Except that looking at a portable GPS is explicitly legal (as long as it's mounted; if you need your hands then it's as illegal as cellphone use), and the lipgloss thing might be kind of grey legality so long as your eyes stay on the road (which they wouldn't) since it's transient, one-handed, and non-electronic.

    @Gabe

    "If talking on a phone while driving is so dangerous, how come we don't hear about all those people killed by phoning drivers?"

    Where have you been?  I've certainly heard about these.

    Of course, one difference is that drinking and driving is taken pretty seriously throughout the US, so it's newsworthy to you when it happens.

    Anyway, news.cnet.com/8301-10784_3-6090342-7.html, http://www.cnbc.com/…/Texting_And_Driving_Worse_Than_Drinking_and_Driving, etc..  Using a phone that requires hands has at least some studied backing up that it's as bad as 0.08 intoxication, and texting is worse (the latter of which I thought would be rather obvious, but apparently it surprises many…).

    "Surely there are more people phoning while driving than drinking and driving, so shouldn't more people be killed by these menaces?"

    …are you suggesting that something has to be at least as bad on a per capita level as drunk driving for it to be bad?

    In any case, I actually don't think the per capita risk should play into this — when I go on the road and do everything "right" (whether or not there's a law about it), I have to face off against the gestalt odds of other people taking risks, not the per-risk-taker odds.

  25. John says:

    Well, I guess the interpretation depends on the judge you get.  Go hold a cell phone to your ear while using a hearing aid and get pulled over.  If the judge lets you off, I'll but you a Coke.

  26. Worf says:

    How's this? People can't seem to WALK and talk/text it seems. Pedestrians get run over continually (Darwin!), and people have run into lampposts and other street furniture. Nevermind getting bumped by mindless zombies who are so absorbed on the phone, or when I try to walk around them they walk right into me.

    Sigh. And we want to let them control a 2-ton vehicle when they can't master the basics of walking. (And everyone stuck behind you knows you're on the phone just by the way you drive.)

    BC has the ban since the beginning of the year, with tickets starting in february.

    http://www.news1130.com/…/64694–no-1-reason-for-b-c-drivers-breaking-cellphone-ban-but-it-was-my-mom

  27. Drak says:

    Apparenty one of the reasons talking on a phone while driving (while wireless or not) is that the person on the other side has no idea of your situation, and can't shut up (or call out) if something dangerous occurs on the road in front of you (unlike, for example, someone sitting next to you in the vehicle). Also, people tend to look at the speaker to position their mouth for maximum understandibility, thus taking their eyes off the road.

    Imho, it's a good law. Not because it saves you from crashing into things, but it saves others from you crashing into them.

  28. Drak says:

    @Kate: They should have said 'operating' instead of 'using', then at least you could use your phone as a music source or paperweight :)

  29. Matt says:

    Here in the Netherlands this has been illegal for a couple of years now, but there is no other law on what you cannot do in the car. A while ago my mother was doing her hair with a curling iron (which to me sounds much more dangerous since you are not even watching the road but watching your hair in the mirror) and got pulled over. When the cop came over to the car and he saw that she wasn't using a phone but a curling iron he said: 'Oh…, it's a curling iron… Well sorry to bother you, goodbye, drive safely'….

  30. Steve says:

    I was hit head-on by a taxi driver in 2002 – he came round a blind bend on my side of the road, talking on his mobile phone and (failing to) control the taxi.

    He drove straight into me – the car was shortened by 9 inches, and the gear-stick was found in the boot. The general consensus of the emergency services was that I was lucky to survive the impact and if wasn't for the seatbelt and the airbag I wouldn't be here typing this, and if I had had a passenger at the time they would have been killed instantly.

    The taxi driver probably thought he was a perfectly  safe driver and completely in control too, right up until that moment.

    Do each and every one of you people need to make a decent attempt to kill another driver before you realise how irresponsible you're being? Your oh so amusing clever-clever reinterpretations, and wrinkles, and hilarious attempts to prove how superior you are, will all work really well once you've successfully caused an accident through your inattention. So carry on, have fun debating the loopholes and preparing your excuses and relying on your superior driving skills compared to everyone else on the road – just make damn sure you're driving on a different road from me when you try to put your theories into effect.

  31. Random832 says:

    Over here, in Victoria, AUS, since late 2009, the phone's not actually be allowed to be held or resting on your body, so the speakerphone-in-hand option is out of the question.

    What's the rationale for that (and the GPS distinction mentioned above by Ens)? That you need both hands on the wheel at all times? Then why haven't manual transmissions been banned?

  32. GWO says:

    @Random832: Then why haven't manual transmissions been banned?

    Because changing gear takes about 0.5 seconds, and even I tend to have longer telephone conversations than that.  

    And because gear sticks don't hold a conversation with while occupying one of your hands — distracted and out of control.

    And because while changing gears you tend to be necessarily focussing on the mechanics of driving a car, rather than what you're going to do that evening.

  33. Luke says:

    @Random832: It wouldn't be that you need both hands on the wheel at all times. More likely it would be having both hands in control of the vehicle at all times. Using the gear stick is controlling the vehicle as well.

  34. Kate Y. says:

    I don't text or talk on my iPhone while driving, but I have in the past been guilty of using it to check Google Maps.  I wondered what Oregon's new "no texting" law had to say about this.  

    The legislation prohibits drivers (with some specific exceptions) from "using a mobile communication device" while operating a motor vehicle. A mobile communication device is defined as "a text messaging device or a wireless, two-way communication device designed to receive and transmit voice or text communication".

    Looking at Google Maps certainly violates the spirit of the law, because one is definitely using a mobile comm device (altho not using it to receive or transmit voice or text communication).  

    The literalist in me is annoyed that using my iPhone as a music source, a flashlight, or a weight to hold down a page of written directions, violates the *letter* of the law.

  35. Joseph Koss says:

    I really don't like "two hands" rules.

    Two hands is twice as many muscles, so can be expected to be twice as difficult at least some of the time.

  36. Falcon says:

    @Random832: I have two theories – 1) the phone could fall to the floor or into some gap, tempting you to retrieve it and causing further distraction; 2) you could argue that you weren't actually holding the phone in your hand.

  37. Gabe says:

    Ens: I'm looking for empirical evidence. If driving-while-phoning is more dangerous than driving-while-drunk, I expect there to be some readily-available statistics to back up that assertion. The studies suggest that DWP makes reaction times worse than DWI, or DWP makes one more likely to not stay in one's lane compared to DWI, or several other indicators that don't directly correlate with dangerousness.

    What I'm saying is that if DWP is more dangerous than DWI, as claimed, there should be plenty of actual accident statistics to back up the claims. If DWP were an uncommon event then I might understand the need for studies to measure proxies like reaction time. However I see people DWP regularly (perhaps daily), while I've seen people DWI maybe a few times in my life, so the DWP statistics should be readily available.

  38. ton says:

    Aha so this is how high powered tax attorneys go about looking for loopholes so that billionaires don't pay any taxes. It reminds me quite a bit of the process to find vulnerabilities in software by breaking the developers or in this case lawmakers assumptions.

  39. No One says:

    @ton: The major "loophole" for low taxes is simple: capital gains.  If you have enough money that you can sock away all of /this year's/ earnings in an index fund (so that it's real value doesn't change) and then withdraw from /last year's/ index fund earnings then congratulations, you have invested in a stock for over one year and thus are subject to merely a 15% tax rate.

    Unfortunately, the lower capital gains tax (arguably, and hotly) has real benefit in encouraging investment among the middle class, which (again, arguably) helps to create wealth.

    In reality, if you could just stand to minimize your costs for one-to-five years, enough that you can sock away about a year's worth of earnings in the market you, to could, from then on, be paying merely 15% taxes.

    (The other loophole used often has to do with controlling a non-profit, which can be legal and still net you lower taxes or using corporate property for personal usage, which is more often illegal.)

  40. Drak says:

    @Ens:

    http://www.edgarsnyder.com/…/statistics.html

    Seems to say something about cellphones and accidents (and that there appears to be data becoming public).

  41. Ens says:

    That should be true if and only if driving while holding a phone was easily verified and widely and consistently reported.  Being drunk leaves markers after an accident.  Having a cellphone in your hand does not, in general.  Furthermore, drinking and driving has been a thing that could be done for 100 years (I wonder if drinking while horseriding was ever a problem :)).

    I'm surprised there's any question of whether staying in your lane or reaction time affects dangerousness.  Why else is drinking and driving dangerous?

    Also, I don't want to defend the claim that DWP is more dangerous than DWI; that's a different goalpost and if it turns out to be true, well all the more reason — but that's not where I draw the line.  DWI is a very low bar to pass.  I don't even necessarily want to defend the claim that DWP *is* on the wrong side of the line, I just pulled that out because somebody said they'd never heard of this before.  What I wanted is all-around acknowledgement that this is a legitimate issue, it does have at least some evidence behind it (whether or not it's sufficient is a different argument for a different blog); it's very far from ridiculous; and it makes no difference whatsoever how bad drinking and driving is relative to cellphone use.

  42. Gabe says:

    Ens: I was merely responding to Mike who claimed: "Using a mobile phone while driving is more dangerous than drink driving."

    I am in no way trying to claim that DWP is not dangerous, nor that anything else is not dangerous. I just think that if DWP is *more* dangerous than DWI, there should be actual statistics to back that up. Taking the State of Pennsylvania for example, http://www.alcoholalert.com/drunk-driving-statistics-pennsylvania.html claims on the order of 3000 fatalities between 2003 and 2008 from traffic accidents involving a drunk person, while http://www.edgarsnyder.com/…/statistics.html claims 63 total fatalities involving cell phones for that 6-year period.

    So, assuming those statistics are relatively complete, DWI must be more than 50 times more prevalent than DWP, or DWP is not really more dangerous.

  43. Sean M says:

    People who use a mobile while driving should have their car impounded and their license permanently destroyed before they kill a cyclist or pedestrian or another driver.

    disclosure: I'm a cyclist, and I ride with the fear that I'm going to be cleaned up by some person reporting "illegal activity" via SMS

  44. Mike says:

    I admit, I use my cell phone all of the time while driving, but then again, it isn't illegal here as long as you are talking on it and not texting.  Texting while driving has been illegal for all of a few months now.

  45. Daniel Rutter says:

    I think it's worth mentioning that, never mind the ethics, this sort of thing is unlikely to work very well when the justice system gets a look at it.

    The key concept for all "legal loopholes" – not just silly ones like this – is good, and bad, faith. If what you're doing is technically legal thanks to a loophole, but you're deliberately exploiting that loophole to do something that you very well know is against the spirit of the law, then you're acting in bad faith. Do not trust technically-legal bad-faith acts to keep you out of jail.

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