Could tougher texting-and-driving law be used for racial profiling?

Rep. Emily Slosberg’s two-year crusade to strengthen Florida’s texting-while-driving law — what fellow Democratic Rep. Carlos Guillermo Smith has called her “legacy” — appears set on a path for success this session.

After last year’s version died in committee, this year’s bill and its Senate counterpart (HB 33, SB 90) have sailed favorably through committees in both chambers. The legislation got a major boost when House Speaker Richard Corcoran, R-Land O’ Lakes, spoke in favor of it, citing statistics showing the dangers of texting while driving, particularly for younger drivers. More than 50 legislators have since signed on in support.

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The fanfare is great for the bill, but Slosberg is focused on a more personal mission when it comes to traffic safety. Twenty-two years ago this month, she lost her twin sister, Dori, in one of Palm Beach County’s most devastating car crashes — one that had nothing to do with texting but that also killed four other teens. Slosberg herself suffered critical injuries, including a punctured lung and broken pelvis.

Changing the law from one where can be ticketed for texting only if they are first cited for other violations to one that would give officers the power to pull over drivers solely for driving and texting is about ensuring that Florida is doing all it can to make roads safer and prevent more deaths, Slosberg said.

“This is preventable,” she said. “The studies show it takes strict enforcement and education. You need both.”

But this goal has put her at odds with some fellow Democratic legislators – including members of her own Palm Beach County delegation.

Some lawmakers say boosting the law from a secondary traffic offense to a primary one could put African Americans and other racial minorities at risk for profiling by law enforcement officers.

State Rep. Al Jacquet, D-Delray Beach, said it’s unclear how officers can determine if someone is texting while driving, leaving “wide open the ability for a rogue officer to do as he pleases,” he said.

Those concerns are fueled by recent reports of disparities between blacks and whites who have been cited in Florida cities for pedestrian, biking and driving violations.

Legislators are not alone in their concerns, said Melba Pearson, deputy director of civil rights advocacy group ACLU Florida.

“Distracted driving is a concern,” she said. “But we have a wide concern in making sure people are not being discriminated against.”

For example, Palm Beach County sheriff’s deputies stopped black drivers three times more often than they did white drivers in 2014, according to a 2016 ACLU analysis of state data.

Blacks were stopped nearly twice as often statewide and up to four times as often in certain counties, according to the analysis of data reported by Florida law enforcement agencies under the Florida Safety Belt Law and published by the Florida Department of Highway Safety and Motor Vehicles.

Similarly, a recent investigation by the Jacksonville Times-Union and ProPublica found that that police issued tickets to blacks in Florida’s largest city at nearly three times the rate as whites.

And a 2015 investigation by the Tampa Bay Times found that of the more than 10,000 tickets issued to bicyclists in the last 12 years, nearly 80 percent were given to African-Americans.

State Rep. Wengay Newton, D-St. Petersburg, was among the first this session to voice his concerns about how changes in the texting-while-driving bill again could leave racial minorities vulnerable to profiling.

Last month at a House Transportation and Infrastructure Committee meeting, Newton, who is black, said he was speaking up so that people who looked like him would “get a fair shake.”

Despite his reservations, Newton voted for the bill in that committee and again in last week’s Government Accountability Committee meeting.

In the more recent committee meeting, Newton – saying he wanted to protect drivers’ Fourth Amendment right against unreasonable search and seizure – proposed an amendment that would prohibit officers from detaining drivers or searching their vehicles once a traffic citation has been issued without probable cause. It failed.

Newton said his proposal would have more directly handled the problem of potential racial profiling than other amendments that have won approval in both the House and Senate versions of the bill.

“The real issue is once you are pulled over, anything can happen,” he said.

One of those amendments winning approval is a requirement that officers collect the racial and certain ethnic information for every driver they cite for texting while driving, which was added to Slosberg’s House bill last week by the House Government Accountability Committee.

Under the amendment, law enforcement agencies would annually forward that information to the governor, Senate president, and House speaker. Data from county sheriffs and the municipal law enforcement agencies then would be combined with statewide totals for state and university law enforcement agencies.

Pearson said the ACLU wants this language included in the bill because “at least it gives an idea of whether or not people are being treated fairly or if there are disparities.”

Rep. Barbara Watson, D-Miami, proposed the amendment in the House bill, while Sen. Perry Thurston Jr., D-Fort Lauderdale, proposed a similar amendment to the Senate bill last month in the Senate Appropriations Subcommittee on Transportation, Tourism, and Economic Development.

The amendment was approved, but Thurston’s fellow committee member, Sen. Bobby Powell, D-West Palm Beach, still voted against the bill.

Powell had previously said he would support the bill only if language regarding data collection was added, but he told The Palm Beach Post he still had outstanding concerns. “It doesn’t cover someone sending an email, or playing a game, or watching YouTube videos. You’re still distracted,” Powell said of the texting-while-driving bill.

Thurston, who is the chairman of the Florida Caucus of Black Legislators, said adding the language makes for “a better bill.”

“We understand we need to help people modify their conduct and help people be safe,” he said. “But there are additional factors that some communities have to consider.”

Thurston said the caucus will oppose the bill should the amendment be removed from the final version.

While law enforcement agencies would be required to collect racial data from texting while driving citations, the amendment does not require agencies to analyze or use the data.

If there are disparities in application of the law, the burden of correction would lie with law enforcement agencies, Thurston said.

But Pearson said the data could be used for many purposes, including identifying areas where officers would need more training and helping legislators shape future policy or make changes in the current law. She agreed, however, that “the best case scenario would be the department looking at that data and seeing if there is a problem. It’s incumbent on them to explore the reasons why and do a deeper dive.”

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