Latest Distracted Driving Bill Fails to Advance in Nevada Legislature

Benson & Bingham

A few months ago, we profiled a bill proposed in the ongoing legislative session that would have handed law enforcement officers responding to the scene of a motor vehicle accident with a new tool to determine which party (or which parties, if multiple drivers are suspected) were using a mobile device in the moments before the crash. The bill was Assembly Bill 200 (known by the shorthand of A.B. 200), and it was among the wave of new bills that washed over Carson City in the early weeks of February as the legislative session kicked off.

As we discussed in our post back in the month of March, Nevada adds quite a few twists and turns to the lawmaking process that make it more complicated than what you might have learned on “School House Rock.” Just like the narrator of that song – the Bill, who was always sittin’ up on Capitol Hill – proposed legislation in the Silver State has to make it through both houses of a bicameral (i.e., two-chamber) legislature and win the support and signature of the governor. So far, so good (and so familiar). But as we previously described, Nevada’s regular legislative sessions are limited to just 120 days. [1] Many observers complain that the U.S. Congress struggles to finish its work on a timely basis, and the national legislature meets year-round! (There are breaks here and there, including most of the month of August and two or more weeks around the winter holidays. This is all a matter of tradition; Congress sets its own schedule and it varies from year to year.)

Okay, so Nevada lawmakers have 4 months to get their work done while their federal counterparts have 12; maybe we should just expect that the state officials get one-quarter as many bills passed. But there is another difference – the Nevada Legislature meets only once every two years! [2] So really the Legislature is only in session one-eighth of the time, or 12.5 percent of the year. That means that lawmakers have to make their time in Carson City worthwhile. Our policymakers are humans just like the rest of us, and they struggle with procrastination; to help them along, the Legislature has a series of deadlines to ensure that the lawmakers do not get bogged down with bills that do not have what it takes to make it beneath the governor’s signing pen.

As an example, we will examine the current legislative session. (Since the Legislature meets every two years, it’s always the odd-numbered years when regular sessions take place. The spring 2019 regular session is the 80th in the state’s history.) The season begins on the first Monday in February, which this year fell on February 4, 2019. [3] Lawmakers had a little over nine weeks (until Friday, April 12, to be precise) to secure passage of their bills in the committee of the first house. [4] (A quick bit of inside baseball: lawmakers are members of either the State Assembly or Senate. Those bodies are broken up into a number of committees which mostly handle different areas of subject matter. As bills make it into their first-draft form, they are assigned (or “referred”) to these committees to begin their journeys toward passage.) Bills that pass out of committee (i.e., secure a majority of votes in that smaller body) may advance to another committee or to the “floor” of that legislative house (i.e., the Assembly or Senate). Once a bill passes the first house (where it originated), it then gets referred to a committee in the second house and then must pass there, too. If the bill changes in the second house (which is almost inevitable), then it has to be re-passed in its amended form by the original house, or the differences have to be worked out by a special committee. And then the bill can proceed to the governor’s office. (This part is much more “School House Rock” than the oddities described above!) Each of these milestones has its own deadline, and they get tighter as the session winds down. And all of this must happen within 120 days, although the legislative leaders have several cards up their sleeves if they want to give a favored bill a second life.

So, back to A.B. 200, the bill we have discussed previously that would allow law enforcement officers to inspect drivers’ phones at the scene of a crash. As you might guess from the name, this bill began in the Assembly. It was referred to the Assembly Judiciary Committee, and it had its first (and only) hearing on March 1. [5] When we first wrote about this proposed legislation, we noted the potential to improve public safety by creating a new form of accountability for drivers who embrace the dangerous combination of driving a motor vehicle and using an attention-consuming mobile device. But we also pointed out that a law that allows police officers to demand a driver’s phone could create privacy problems. Sure enough, those two arguments framed the debate over this proposed law.

Proponents – which included insurance companies and at least one technology company offering a specialized product that claims to access device use information without accessing content and thereby invading privacy – emphasized the potential for improved safety and the care that has been taken to craft a legislatively and technologically balanced bill that always privacy concerns. [6] Opponents, including the American Civil Liberties Union (commonly known as the ACLU) argued that the proposed bill would violate the Fourth Amendment to the U.S. Constitution (which also applies to Nevada under the Fourteenth Amendment). [7] One committee member proposed an amendment that would have allowed a driver to choose whether to let a responding police officer access the mobile device, would have removed the penalties for non-compliance, and would have put a clear onus on the police to obtain a warrant to obtain information that was not volunteered. [8] The amendment would also have narrowed the law’s effect to crashes involving serious injury or death, and it would have made clear that the mobile device was not to leave the driver’s hands while the usage diagnostic was run. [9]

But those proposed changes were not enough to move this bill forward, and with the passage of the April 12 deadline it is most likely dead at least until 2021. By that time, legislation like this may be better understood from other states’ experiences, the technological options may be improved, and Nevadans can again consider whether this legislation would keep them safe from motor vehicle crashes without unduly sacrificing privacy and liberty. In the meantime, if you are injured by a distracted driver, be sure to seek help from an experienced personal injury lawyer to understand your ability to win compensation.

[1] https://www.leg.state.nv.us/General/AboutLeg/Detail/index.html

[2] https://www.leg.state.nv.us/General/AboutLeg/General_Short.html

[3] https://www.leg.state.nv.us/General/AboutLeg/Detail/index.html

[4] https://www.leg.state.nv.us/Session/80th2019/Docs/120-day_calendar.pdf

[5] https://www.leg.state.nv.us/App/NELIS/REL/80th2019/Bill/6307/Meetings

[6] https://www.leg.state.nv.us/App/NELIS/REL/80th2019/ExhibitDocument/OpenExhibitDocument?exhibitId=368…

[7] https://www.leg.state.nv.us/App/NELIS/REL/80th2019/ExhibitDocument/OpenExhibitDocument?exhibitId=370…

[8] https://www.leg.state.nv.us/App/NELIS/REL/80th2019/ExhibitDocument/OpenExhibitDocument?exhibitId=369…

[9] https://www.leg.state.nv.us/App/NELIS/REL/80th2019/ExhibitDocument/OpenExhibitDocument?exhibitId=369…

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