Statement of J. Robert Latham, Jr., J.D.
Public Affairs Director, The Independent Institute

California Legislative Panel
sponsored by
Assemblymember Audie Elizabeth Bock

Elihu M. Harris State Building Auditorium
Oakland, California

Thank you Assemblymember Audie Bock for the invitation to participate on this panel discussion on cell phone use while driving. My name is Rob Latham and I am the Public Affairs Director for The Independent Institute. We are a non-profit, non-political, public policy research and educational organization headquartered here in Oakland, California.

My role today, as I see it, is two-fold. First, to defend the status quo as someone who uses a cell phone, drives, and sometimes does both at the same time. Second, to share with this panel and this audience some of the research relevant to this issue that some of our nation’s think tanks have produced.

It’s perfectly legitimate for us to be concerned about the use of new technologies in automobiles because new technologies can lead to distraction, distraction can lead to bad driving, and bad driving can lead to collisions, which imposes costs on other drivers.

Before I go any further I want to address a claim often made that using a car phone is like driving drunk. That claim is based on a study that appeared in the New England Journal of Medicine which concluded that cell phone use while driving increased a drivers risk of a collision by four. As the authors of that study noted, “driving with a blood alcohol level at the legal limit is [also] associated with a relative risk of 4.” Those two statements were interpreted by some journalists and anti-cell phone activists to indicate “that using a cellular telephone is equivalent to driving drunk.”

But “[t]his is not true” as the authors of the New England Journal of Medicine study wrote later that year, for several reasons. (Redelmeier, Donald A. and Robert J. Tibshirani, “Is Using a Car Phone Like Driving Drunk?Chance (Spring 1997)). For one, when a driver is intoxicated, the impairment lasts over a continuous period of time. With a cell phone, the driver chooses the length of distraction. (I’m dialing a number, now I’m checking the road ahead of me, now I’m listening to the phone ring, now I’m checking my rearview mirror.) And the greater level of intoxication, the greater the level of impairment and risk.

By contrast, cell phone use has much in common with tasks many drivers are familiar with, such as driving while tuning your stereo or talking on a CB radio. In those situations, the driver chooses when to be distracted.

Now when issues such as public safety are discussed sometimes we hear the claim “Well, if we save only one life then it was worth it. If it costs $10 billion, that’s OK because nothing is more precious than one human life.”

But regulation and legislation have costs too, both in terms of dollars and in terms of lives.

Another think tank, the Competitive Enterprise Institute, has an ongoing study it calls the “Death by Regulation Project” which shows that over-regulation can threaten health and safety, in many cases, with deadly consequences.

Regulation and legislation also have an effect in terms of the tradeoffs we make when we decide to devote regulatory enforcement and law enforcement resources over here, instead of over here.

As one of The Independent Institute’s senior fellows, Bruce Benson, pointed out in a study he did called Illicit Drugs & Crime: “Getting tough on drugs has had the inevitable consequence of getting soft on nondrug crimes.” Filling up our prisons with pot smokers means less room for murderers, robbers, and rapists.

So the issue before us is whether consumers (drivers, non-drivers, cell phone users, non-cell phones users, etc.) would be better off or worse off if we regulated cell phone use in vehicles.

I’m aware of one study on this issue put out last year by the AEI-Brookings Joint Center for Regulatory Studies that I think is quite good. The authors are Robert Hahn and Paul Tetlock.

We’ve already heard a lot about the costs of permitting drivers to use cell phones in terms of personal injuries and property damage. In their study, Hahn and Tetlock “calculate the costs of cellular phone use in vehicles to be $1.2 billion per year. About half of this $1.2 billion is attributable to the 78 estimated fatalities associated with driver use of cellular phones while the other half represents the costs associated with more minor accidents in which cell phones were a contributing factor.”

But focusing on the costs attributed to cell phone use while driving is only half useful if we don’t examine the benefits as well.
Some of those benefits include:

*the ability to call ahead if you’re running late, thereby reducing pressure on the driver to speed through traffic,

*the ability to call on the way home from work to see if anything needs to be picked up from the supermarket, thereby reducing the number of car trips, which helps the environment and reduces traffic congestion, and, of course,

*the ability to conduct business on the phone during time that would otherwise be spent idling in traffic.

Let’s also note the benefits we receive from drivers who use their cell phones to report emergencies: car accidents, assaults, robberies, and so on.

The economists, Hahn and Tetlock, calculate that American consumers place a value on the benefits of cell phone use while driving at about $25 billion. As a result of their cost-benefit analysis, they conclude that “banning drivers from using cell phones is a bad idea.”

Quoting Hahn and Tetlock again, they write that “the mere existence of a problem does not, by itself, warrant government intervention. . . . For government intervention to be warranted, a strong case needs to be made that the likely economic benefits exceed the costs by a significant amount.”

In this case, it’s the other way around; the likely costs of a ban would exceed benefits by a significant amount. In other words, if we banned cell phone use by drivers, the return on our regulatory investment would be very poor.

I want to conclude with a word about accountability. Right now, when a negligent driver crashes into another car, cell phone or not, we can hold the negligent driver civilly liable for the damage caused. That’s the law in California and every other state.

But if we pass a law banning cell phones, and not only do we not reduce the number of vehicle accidents by a significant amount, but we create a whole host of unforeseen and negative consequences, who will be accountable for that bad law?

Or let’s assume that even if we have a ban in place, it’s openly violated by drivers who weigh the costs of the fines against the benefits of using their cell phones while driving—we know the type, right?—and they decide the benefits outweigh the costs. And there’s a wreck.

Do we blame the police for not enforcing the ban? No, Section 845 of the California Code states that: “Neither a public entity nor a public employee is liable for failure to establish a police department or otherwise to provide police protection service or, if police protection service is provided, for failure to provide sufficient police protection service.”

No, in that situation, the driver is individually responsible. Maybe the driver gets caught using his cell phone while driving, maybe not. Either way, he’s going to be held liable for the damage he caused under the civil, not criminal, justice system. And therefore we’re right back where we started.

So if that’s the case, then what’s the point of a new law? You can’t legislate common sense, but you can set it free and encourage it.


I think some of the recommendations made by Fran Bents of Dynamic Science, Inc., in the study she co-authored for the National Highway Traffic Safety Administration, are excellent. Collect more data, punish violations of inattentive and reckless driving laws “regardless of the causes of such behavior,” and improve driver education.

The latter is already being done. When I turn on my cell phone it reads on the display “Safety—your most important call.” Drivers education courses are teaching students about cell phone use while driving, even though the state doesn’t require them to. We can mention it in the drivers’ handbook. There’s information on using cell phones while driving on the DMV’s website. And test it on the exam.

Next, shame. Let me quote Patricia Pena, whose daughter was killed in a cell phone-related collision. Mrs. Pena wants “to make [cell phone use while driving] socially unacceptable, to make drivers embarrassed to have a phone at their ear and to make people on the other end threaten to hang up if they know the person they’re talking to is behind the wheel.” (Atlanta Journal-Constitution, April 23, 2000.)

I believe shame, we can also call it political correctness or peer pressure, is enormously effective but underutilized in many areas. Shame fosters common sense. Shame fosters community.

Finally, if we’re genuinely concerned about reducing highway accidents, then with all the gasoline taxes drivers are paying in California we ought to be using some of it to fix the roads.

By most objective measures, the Bay Area is home to some of the most neglected roads in the nation. Studies show that on average Bay Area drivers pay almost $200 per year in auto repair costs caused by poor roads. In addition, Californians rank third in the nation in taxes per vehicle, but dead last when it comes to per capita spending on highways.

It’s poor public policy when most of the taxes drivers pay are not being used to expand and maintain the transportation systems that most drivers use—and that would be our roads. When our roads are unsafe, the people who travel on those roads suffer property loss and personal injury.

And if we want safer roads, our spending priorities on transportation have to change, but perhaps that is an issue for another hearing.

Thank you, Assemblymember Bock. I look forward to exchanging ideas with the other members of this panel and the audience.