The Chapel Hill Town Council made history last week by becoming the first jurisdiction in the nation to pass a measurecreating a blanket ban on all cell phone use while driving. Limitations on permissible uses of cell phones behind the wheel are commonplace. In fact, North Carolina (where Chapel Hill is located) has had a statewide ban on texting while driving since 2009. Other places, such as the state of New York, require that all phone calls be made using a hands-free device.
While the ordinance is set to take effect on June 1, some legal experts doubt the validity of the law based on the principle of preemption. Simply stated, the preemption doctrine holds that a state may not pass a law that is inconsistent with federal law.So too are local governments prohibited from passing a law that is inconsistent with state law.
The Town Attorney wrote to the North Carolina Attorney General’s office last year asking if Chapel Hill had the authority to regulate cell phone use. In November, Assistant Attorney General Jess Mekeel responded that the town did not, because “the state ‘has preemptive authority to regulate the use of mobile phones by motorists within the state of North Carolina.’” The basis for Mekeel’s answer is a North Carolina statutory provision that mandates that all local laws must be “consistent with the Constitution and laws of North Carolina and of the United States.”(N.C. Gen. Stat. § 160A-174 (2011)).
“[T]he state ‘has preemptive authority to regulate the use of mobile phones by motorists within the state of North Carolina.”
Aside from potential validity issues, experts have noted that enforceability of the ban will be exceptionally challenging. Officers are not able to issue citations for violating the ordinance unless the driver is stopped or arrested for some other reason, and the penalty for a violation is only $25. The statute also contains exceptions, including allowing calls in emergency situations and with parents, spouses and children. Further, educating the public about the ordinance will pose numerous cost and logistical difficulties. Although Chapel Hill has a population of only 57,000, the town is a tourist hub, seeing approximately 700,000 spectators at football and basketball games alone each year. That number swells to over 1 million total visitors to the town annually.
This ordinance should draw attention to the larger issue of enacting regulations for the use of portable technology devices while driving at the rate with whichtechnological advancements are made. While smartphones and tablets, in particular, have boomed in popularity over the past few years, legislatures have not kept pace with technological progress in regulating their use while driving. There are many jurisdictions that impose limitations on the scope of cell phone calls and text messages that are allowable on the road; however, activities such as using a 3G or 4G enabled tablet to run programs remain unregulated. States must develop a model to keep pace with technological advancements. Otherwise, small governing bodies will be forced to fruitlessly attempt to address the issues independently, while individuals statewide will be subjected to the dangers of sharing the roadways with drivers who are engaged in watching movies, reading blogs, and playing games on portable technology devices.