Tuesday, August 02, 2005

New Jersey Considering Legislation to Ban Smoking While Driving

The New Jersey legislature is considering legislation that would ban smoking while driving. The bill, introduced by Assemblyman John McKeon (D-West Orange), is intended to reduce motor vehicle accidents by preventing distracted driving due to smoking. McKeon cited data from a AAA-sponsored study which showed that approximately 1% of accidents due to driver distraction are related to smoking.

Appearing on MSNBC's The Situation with Tucker Carlson, McKeon estimated that this legislation would prevent the 1% of distracted driver accidents related to smoking: "if you extrapolate it to the national statistics, there’s three million vehicular accidents a year. A third of them are related to driver distraction. So, take one percent of one-third. That’s 1,000. That’s 1,000 accidents a year. That’s 150 fatalities a year. That’s $70 million per year. And this legislation costs nothing. That’s pretty significant."

Since distraction-related accidents make up 33% of all motor vehicle accidents, McKeon is suggesting that if the New Jersey legislation were enacted in all states (where there are 3,000,000 motor vehicle accidents per year), 10,000 accidents (his math appears to have been off by an order of magnitude) and 150 fatalities could be prevented.

McKeon explained that the law is not intended to be enforced as a primary offense: that is, drivers will not be stopped for smoking while driving. Only if they are stopped for another reason will police be able to issue a citation for smoking: "People aren’t going to be pulled over for smoking while driving. It’s similar to how the seat belt laws used to be. It’s the same in New Jersey as to how the cell phones are. If you’re pulled over for another offense, speeding, whatever other primary offense it might be, then, in that circumstance, you can be."

The Rest of the Story

While smoking was related to 0.9% of distracted driver-related motor vehicle accidents in the AAA study, a number of other sources of driver distraction, each of which is easily preventable, were more important causes of accidents:
  • Adjusting the car radio, cassette player, or CD player was related to 11.4% of distraction-related crashes;
  • Another device or object brought into the vehicle was related to 2.9%;
  • Adjusting vehicle climate controls was related to 2.8%;
  • Eating or drinking was related to 1.7; and
  • Using cell phones was related to 1.5%.
If proponents of this legislation were truly interested in preventing driver distraction-related accidents, then it would make far more sense for them to address these more important preventable causes of distraction-related crashes before worrying about smoking (or to address smoking along with these other more important causes).

It seems to me that proponents of the New Jersey law are on a slippery slope upon which they cannot stand. If they argue that the impact of smoking while driving is so large that government must intervene into the privacy rights of individual drivers, then they must also agree that government should outlaw more important causes of distraction-related motor vehicle crashes, such as adjusting car radios, reading maps and books while driving, adjusting vehicle climate controls, eating and drinking, and talking on cell phones.

The fact that proponents of the legislation are singling out smoking as the only factor that needs government intervention suggests that the proposed legislation is an example more of moralizing than of a legitimate public health concern.

This impression is furthered by the fact that the bill would not allow for primary enforcement of violations. This negates any potential safety impact of the bill by removing any substantial deterrent function of the legislation. If drivers know they cannot be pulled over for smoking while driving, then what exactly is this legislation going to prevent? Its deterrent effect will be quite minimal, meaning that the estimates of accidents prevented and lives saved are completely overblown.

A quite interesting result from the AAA Foundation for Traffic Safety-sponsored study was that drivers who were smoking were more likely to have at least one hand on the steering wheel than drivers who were not smoking. While not smoking, 1.4% of drivers failed to have any hands on the wheel, while when smoking, only 0.8% of drivers failed to have any hands on the wheel. It was lighting or extinguishing a cigarette that seemed to impair driving performance: 3.6% of drivers failed to hold the steering wheel during that distraction.

But the proportion of drivers not holding the steering wheel was much higher with other activities: 7-8% for cell phone use; 5% for eating/drinking; 12% for grooming; 10% for manipulating vehicle controls; and 15% for reading or writing.

The study also found that driver performance was better for drivers who were smoking compared to those who were not: eye focus on the road was higher and the number of adverse vehicle events was lower. Again, lighting and extinguishing cigarettes was what was associated with impaired driver performance.

These results actually show that when smoking (but not in the process of lighting or extinguishing the cigarette), drivers are actually safer than when not smoking.

An evidence-based approach informed by the AAA-sponsored study would suggest that a far broader view of distracted driving is warranted and that any interventions to prevent distraction-related accidents should address not only the specific behavior but the effect of various aspects of the behavior on driver performance. The view that smoking is the primary driver distraction that needs government intervention just doesn't appear to be reasonable based on the data.

The rest of the story reveals that the attempt to ban smoking while driving is a misguided policy that ignores far greater causes of distraction-related accidents, will not actually prevent accidents, and represents a level of government intrusion into privacy rights that is not justified .


Bill Godshall said...

One study should not be the sole basis for assessing the merits of a public health or safety policy.

A study by Joe DiFranza et al "The relationship of smoking to motor vehicle accidents and traffic violations" in the September 1986 New York State Journal of Medicine (pp 464-467) found that smokers had 50% more traffic accidents and 46% more traffic violations than nonsmokers.

I'm not aware of other studies on this issue, but DiFranza's research indicates that the hazards associated with smoking while driving may be far greater than the AAA study found.

Thirty years ago when I smoked, I drove my car off the road and into a cornfield while driving about 50 mph after a cigarette fell out of my mouth and down between my legs on the seat. In an instant reflex attempt to avoid burning my crotch, I straightened my legs out lifting my butt from the seat and unintentionally took my eyes of the road while desparately searching for the lit cigarette that had by then rolled under my butt, and I drove the car off the road. Luckily, I wasn't hurt and no pedestrians or other cars were nearby.

On several other occassions when I smoked while driving, the very hot smoke from the burning end of a cigarette went into my eyes (which were only a few inches from the cigarette), causing my eyelids to shut immediately, and blinding me for several seconds. Luckily, I was able to maintain control of the car during those situations.

But these anecdotal incidences, along with others I experienced (e.g. dropped cigarette lighter, searching car for pack of cigarettes, lighting of the cigarette, ashes falling off cigarette butts onto seats and carpet, only one hand to steer due to holding cigarette in other hand) make it clear to me that smoking cigarettes while driving can cause many high risk situations that can injure drivers, passangers, padestrians and people in other vehicles.

So while the public health and safety risks of smoking while driving needs researched further, public health advocates would be wise not to simply dismiss this proposed legislation as unwarranted government intrusion into privacy rights.

Anonymous said...

Just one little correction. The number of vehicle accidents 'attributed' to the act of smoking is not 1 %, it is 0.1 %.

Anonymous said...

So while the public health and safety risks of smoking while driving needs researched further, public health advocates would be wise not to simply dismiss this proposed legislation as unwarranted government intrusion into privacy rights.

Actually, they would and I hope they do.

Cervantes said...

I would say that the analysis of this question has to be a bit more complex. Your desconstruction of the rationale for the legislation is essentially unassailable (even if there is some error or uncertainty in the various numbers). But I'm not sure this is about a privacy right, per se. Smoking, or doing anything else, in a motor vehicle traveling on a public road is not a private act, by any definition. It is visible to bystanders, and it potentially affects others, even to the extent of depriving them of their lives. So there is a perfectly legitimate public interest in regulating the behavior.

What it comes down to, then, is a cost-benefit analysis. You may be right that the priority order in this case suggests that the legislation is off target. But like another commenter, I as a youth was driving on the Pennsylvania Turnpike when I looked down to operate the cigarette lighter and by the time I looked up, my right wheel was in the ditch. I damn near ended it right there. Agreed, it wouldn't have been worth it to kill myself in order to change the radio station or look at a map either, but if the practical politics of the situation made it possible to ban some, but not all such practices, would that make it wrong to do so?

I'm not coming to any conclusion about this, just stirring up trouble.

Bill Godshall said...

Another study by Julian Waller, MD entitled "On Smoking and Drinking and Crashing" in the September 1986 New York State Journal of Medicine found that smokers with very little alcohol in their blood (<.02% BAC) were 3.16 times more likely to cause fatal auto crashes than were nonsmokers with <.02% BAC.

That same study also found that smokers with moderate alcohol in the blood (.02-.09% BAC) were twice as likely as nonsmokers (with .02-.09% BAC) to have caused a fatal auto crash.

But perhaps the most interesting finding in that study was that smokers with <.02% BAC were 57% more likely to have caused a fatal auto crash than were nonsmokers with .02-.09% BAC.

And yet, driving with a .09% BAC is a DUI crime in every state (with severe penalties for violators), but smoking while driving isn't even a misdemeanor in any state.

As such, nonsmokers with a .09% BAC (who were found to have a lower risk of causing fatal crashes than were smokers with <.02% BAC) are committing crimes, but smokers are free to continue their higher risk activities.

But while some might argue that these differences of risk demonstrate that the .08% BAC laws infringe upon the privacy rights of drivers who drink, others (including myself) would conclude that the same prohibition of nonsmoking drivers with .08% BAC should apply to smoking while driving.

Anonymous said...

Drunk non-smokers pose less of a hazard than drunk smokers? Hmmm. Drinking & driving already regulated; higher penalties for those who smoke & drive while drunk? X! People who smoke & are drunk are probably more likely to lock their children in their car trunks...
Simple solution: outlaw car trunks! Then those pesky civlib types who cry over boot & glove box searches would have to find something else to pee & moan about

Michael Siegel said...

Cervantes - you are right in pointing out that the interference with privacy needs to be weighed against the governmental interest in protecting the public's safety and that a balancing act is required.

I guess my argument would be that based on the data, the balance is still on the side of the privacy rights. Or at very least, I think I would argue that given the data, the balance for government intervention would be reached first for some of the distractions other than smoking.

Bill - thanks for adding these additional studies to the discussion. My question, however, is whether you know whether these studies simply assessed the accident risks of smokers versus nonsmokers, or whether they actually looked at the specific risks of driving while smoking? It makes a big difference because if the evidence is that smokers are less safe drivers (but for a reason other than the physical holding of the cigarette), then it would not provide any justification for banning smoking while driving.

Anonymous - I do agree with you; based on current data I have reviewed, I do think that this legislation represents unwarranted government intrusion into privacy rights.

Bill Godshall said...

The answer to Mike's question (which I should have clarified in my postings) is that those studies
didn't evaluate smoking versus nonsmoking while driving, but rather calculated the different rates of crashes, traffic violations, and fatal traffic crashes between smokers and nonsmokers.

Cervantes said...

There is a question of what would constitute good public policy, and there is a question of what is constitutionally permissible. This is often very tricky because rights not otherwise restricted adhere to the people, so we have to figure out what rights are restricted. That seems exceptionally easy in this case.

The state built the road. The state maintains the road. The state owns the road. Therefore, if the state is entitled to exist, it can establish the rules for use of the road. To argue that the state may not do that is to argue that the state is illegitimate.

cinaesthesia said...

This is just another distraction used by the ANTI Tobacco Cartel and their minions to undermine and take focus off of the issue of smoking in public. No we just want clean air to breathe in our public places. Yea, right, we all are quite aware what the real focus is on and it is NO TOBACCO! Fine! Outlaw it and I will be another American waiting to fill the jails as we progress to a Democratically Sanctioned Police State. Have you noticed that the only growth industry in this country is in the prison system? I would like to say that you are paying for it, but as you can tell in states like Minnesota and Washington who use tobacco taxes to balance their budgets that it is simply comming directly out of smokers pockets.

Mrs. Non-Gorilla said...

SCOTUS has determined that your privacy interest in your car is considerably less than your privacy interest in other areas, such as your home. furthermore, driving on public roads is not a right, it's a privilege. if a state wants to regulate a driver's acceptable activities, it's well within its rights. unless you want to try a dormant commerce clause argument (which would be undermined by the availability of other sources of nicotine, not to mention the ability to pull over for a smoke when a nic fit gets bad), there really aren't any constitutional issues here that i can see.

Michael Siegel said...

I agree that there is not a constitutional issue here. The legislature could, if it wants, ban smoking while driving.

I am arguing something different - that from a public policy standpoint, the legislature shouldn't ban smoking while driving, given the evidence that there are far more harmful driver distractions that could be addressed if the real goal is to prevent driver distraction-related injuries.

Mrs. Non-Gorilla said...

except that in your closing sentence, you write, "[the attempt to ban smoking while driving] represents a level of government intrusion into privacy rights that is not justified."

justification is always a balancing of protected interest in something against the benefit of regulating it. because an individual's expectation of privacy in his or her car is minimal, the benefit of regulating a particular activity in that car doesn't have to be overwhelming to be justified. and because smoking while driving isn't stipulated as a primary offense, the privacy intrusion is fairly minimal.

the existence of other things that might bear regulation does not preclude the legislature from focusing on smoking while driving, which can bear regulation. moreover, i don't see anything in the original post that suggests that smoking is, as you put it, "the only factor that needs government intervention." (if you'll notice, new jersey already prohibits talking on a cell phone while driving.)

a final question -- what evidence do you have that a ban on smoking while driving "will not actually prevent accidents"?

Michael Siegel said...

Perhaps I'm misunderstanding your reasoning here but it seems to me that if one argues that "an individual's expectation of privacy in his or her car is minimal," then one would also have to support legislation to ban people eating and drinking while driving or talking to other people in their car while driving. Because the evidence shows that these activities pose far greater a risk of crashing and injuring other people than smoking does. So if government intervention to regulate smoking while driving is justified, then certainly, government intervention to regulate these more hazardous activities is also justified.

It seems to me that the only way around this quandary is to then argue that the privacy rights of eating and drinking in one's car while driving outweigh substantially the privacy rights of smoking in one's car while driving.

But I don't see how eating, drinking, and smoking differ at all in terms of the degree of privacy in one's car that they represent. Intruding into one's ability to eat while driving seems to be no more intrusive then telling someone they can't smoke while driving.

Or to put it the other way, it seems to me that telling someone they can't smoke while driving a car is every bit as intrusive as telling someone they can't eat or drink while driving their car.

None of these activities - eating, drinking, or smoking - is an absolute right, none of them is necessary to operate the vehicle, none of them is necessary to do at all while driving (each of the activities can wait until later), and not eating, drinking, or smoking while in a car has an equal level of inconvenience associated with it.

Mrs. Non-Gorilla said...

mike - they differ in terms of political feasibility. i can support legislation regarding eating or putting makeup on while driving (one of the stupider activities i've ever seen, i must say) until the cows come home, but that won't make it happen.

there's big difference between "justified" and "feasible." why expend political capital on something that won't fly, when you can expend it on something with slightly more than a snowball's chance in a blast furnace?

Bill Godshall said...

Compared to banning smoking while driving, states have enacted many far less justified driving laws.

Most states prohibit driving a car if there is an open can of beer in the car (even if the driver hasn't drank any of the beer).

In many states, police conduct searches of automobiles without having any evidence that a crime has been committed (rather they scare and intimidate the drivers into succumbing to a search).

And even though its been estimated that only a few dozen lives are saved annually (almost certainly fewer deaths than are caused by smoking while driving), most states have enacted laws that require child safety seats and that prohibit children from riding in front seats.

But I'm not aware of many complaints that these laws unfairly intrude upon privacy rights.

Bobert said...

Bill has just demonstrated more disinformation waged against smokers. Bill knowingly attempted to use an unapplicable scientific paper to bolster his support for the harassment of smokers.

When challenged, Bill admitted the study did not compare smoking versus nonsmoking status while driving, which was the basis of his argument in the first place. Was this intentional, or an zealous oversight?

Why is smoking status important? To understand the sleight of hand Bill pulled, we can look at another example.

Suppose unsurprisingly that another study found eyeglass wearers were found to be involved far more frequently in fatal automobile accidents then those non glasses wearers. Would Bill's argument be that wearing of eyeglasses while driving be made illegal? Ridiculous? Yes, but this was the same basis for the argument Bill presented with regards to smoking.

Then in his last rebuttal, he continued to build on his earlier fraudulent assertion to make a point based on facts not in evidence, when he claims "(almost certainly fewer deaths than are caused by smoking while driving),"

It appears if Bill doesn't understand why this is unethical, and why he has been labeled an anti-smoker.

Based on the arguments he has presented here, one can form their own conclusion if Bill is truly committed to public health and safety, or simply the harassment, and his intolerance of smokers.

BTW, with regards to other forms of intrusions into the rights of privacy, two wrongs don't make it right, but 3 lefts does.

Full name omitted for fear of ending up in the ANR enemies list.

Anonymous said...

Jenny asked "what evidence do you have that a ban on smoking while driving "will not actually prevent accidents"?"

To distinguish between a law meant to harass smoker, or a law to prevent accidents the proper question is,

Will banning smoking while driving contribute to a net saving of accidents?

Jenny pointed out that a ban would probably result in a driver pulling over to satisfy their "nic-fit". Of course this was overlooked has having any contributions to accidents and fatalities.

When smoking was banned on commercial airliners, the cockpit was exempted. One federal regulator explained, they didn't want the pilot to have a "nic-fit" on final approach. Is it possible that the act of banning smoking would actually reduce driver attention, or cause the driver to become distracted?

Would the driver be more likely to drive faster to get to a place to where they could smoke?

Would the frustration of not being able to smoke in ones own car cause them to drive more aggressively?

These are all questions which a true public health practitioner must consider before they and ethically promote legislation on the basis of preventing accidents.

My conclusion is that we have a solution (ban smoking in cars), and we waste our time looking for a problem (study driver inattention due to their smoking).

If the researcher narrows his study to only one specific aspect of the issue, and fails to account for the likely out comes, we have one more bird cage liner, and fodder for a war of propaganda, if it is used inappropriately to support legislation or an agenda.

Authors should and must define the scope and limitations of their research to prevent inappropriate use.

Public health practitioners must not inappropriately use research, to further their own personal agendas, less they face the loss of public trust, in themselves and in their fellow colleges.

To a carpenter, every thing looks like a nail because he is so familiar with his hammer. To a tobacco control activist, everything looks like a ban.

Have so many public health practitioners become so fixated on the issue of tobacco control, that they have lost all their objectivity?