Near Impossible to Enforce at Best, Unconstitutional at Worst: Maryland's Text-Messaging Ban on Drivers Has GTG

Alan Lazerow, University of Baltimore

Abstract

While much research has been done on the effects of cell-phone use on driver safety, the issue of text messaging while driving has only recently received due attention. A comprehensive 2008 study concluded the dangers inherent in text messaging while driving are more serious than both alcohol consumption and marijuana use. Armed with such information, in 2009, the Maryland legislature passed a statute, which provides that motorists may not “write or send a text message while operating a motor vehicle in motion . . . .” First, this article argues the statute is near impossible to enforce at best, as police officers are hard-pressed to be able to prove that they witnessed a motorist sending a text message, to the exclusion of all other non-proscribed activities. Second, nowhere in the statutory scheme did the Maryland legislature define what constitutes a “text message.” On one hand, defining a “text message” as any “message” comprised of “text” would lead the term to encompass e-mail, tweeting on Twitter, posting on Facebook, etc. However, the colloquial usage of the term would limit the statute to prohibiting merely the sending of SMS messages. Because the statute does not give Maryland’s motorists fair notice of what conduct is prohibited, and because the statute does not provide a workable standard to enforce and prosecuting such infractions, this article argues that Section 21-1142.1 is potentially void for vagueness. Finally, this article recommends the Maryland legislature enact recently- proposed legislation that would expand the enumerated list of prohibited activities beyond merely sending “text messages.”