Center for Individual Liberty

Popular Waze App Partially Illegal to Use in Utah

July 5, 2016  |  Posted in: Center for Individual Liberty  |  2 comments

Crowd-sourcing and decentralization have innovated many industries, including transportation. Rather than relying on a government agency to furnish accurate and localized data about road conditions, drivers can now create and share the data on their own. This is the concept behind Waze, a popular mobile app used by many Utahns each day.

What these Utah drivers likely do not realize is that using Waze—though it can help improve public safety—is actually illegal.

Utah law prohibits “manually enter[ing] data into a handheld wireless communication device” while driving. This means that it is against the law to let fellow drivers know of a roadside hazard, freeway accident, police officer’s location, or other data, thus rendering the entire app legally unusable in Utah; if drivers cannot share information then there will be none for other drivers to passively view.

The passage of Senate Bill 253 in 2014 raised awareness of driving while using a mobile device. In a controversial vote, that bill criminalized additional uses of a phone while driving, such as dialing a phone number or accessing the internet. However, even before that bill state law said that Utahns could not, while driving, “manually enter data into a handheld wireless communication device.”

Of course, Waze can legally be used by a passenger in a car, though it is unlikely this accounts for most usage.

We objected to 2014’s change in the law and support loosening the legal standard such that mobile devices are treated like other distractions in a vehicle. It remains perfectly legal to manually manipulate radio controls, eat a meal, apply makeup, discipline a child, have a conversation, daydream, scratch a hard-to-reach itch, or perform any number of other actions that may lead to reckless driving and potentially an accident.

An even better example is Tesla, the popular auto maker who is legally prohibited from selling their cars directly to Utahns. These vehicles feature a touchscreen device mounted to the vehicle’s console, providing the driver with a wide range of features to customize and configure. It’s basically a large, mounted iPad. And yet because it is not “handheld” or “wireless” it falls outside the scope of Utah law and therefore remains legal to use.

But because it’s like a large iPad, its use is similar to that of a mobile device and offers a number of distractions like its smaller counterparts. Why is one okay, but the other is not?

Simply banning a specific type of activity does not address the underlying problem of distracted driving. If anything, it can exacerbate it; whereas drivers would sometimes use a device within their field of vision of the road in front of them, the criminalization led many of them to use the phone in their lap, out of a police officer’s sight, but creating a substantial risk by having to move their gaze away from the road ahead.

A better approach would be to increase the legal penalty for distracted driving when an accident is actually caused. If it can be proven that the driver was intentionally distracted—using a mobile device or not—then the penalty could be increased to create a deterrent effect. Drivers who safely use a mobile device (or listen to the radio or discipline a child, etc.) would face no legal penalty. (This includes the many lawmakers who themselves violate this same law.)

Waze offers real-time metrics on driving, making a safer and more efficient experience. The data is generated by drivers themselves, creating a community-centric system where drivers let those behind them know what to expect. This app, which is unfortunately illegal for single-passenger drivers to utilize, will remain popular in the months and years ahead, despite its legal prohibition. The Utah Legislature should therefore fix the law and let this innovative tool do its job to ensure public safety.

Update: A reader points out, correctly, that the law referenced above contains an exception to the law “when reporting a safety hazard.” As such, Waze is apparently only illegal to enter data pertaining to the location of law enforcement officers, unless one were to argue that an officer stopped at roadside is also a safety hazard (a plausible argument, to be sure).

Utah ‘measurable amount’ drug statute ruled unconstitutional

January 21, 2016  |  Posted in: Center for Individual Liberty  |  17 comments

Earlier this month, a Utah court of appeals ruled in State v. Ainsworth that the penalties under the state’s Controlled Substance Act, which criminalize having “any measurable amount” of a controlled substance in your body, are unconstitutional. This is because the law penalizes the same conduct worse than the DUI statute and is thus unconstitutional as it violates the uniform operation of laws provision of the Utah Constitution.

As the court wrote, “there does not appear to be any rational basis for punishing individuals who have ‘any measurable amount’ of controlled substance in their bodies more harshly than individuals who have an incapacitating amount of the substance in their bodies.” The court went on to rule that there is no “rational basis for charging users of nonprescribed Schedule I or II controlled substances who have a measurable amount of controlled substance in their body, but not enough to render them incapable of safely operating a motor vehicle, with a higher-degree crime than users of nonprescribed Schedule I or II controlled substances who have so much controlled substance in their body that they are demonstrably unsafe to operate a vehicle. Thus, we agree… that the second-degree designation in subsection (2)(h)(i) in the Measurable Amount Statute violates the uniform operation of laws provision of the Utah Constitution.”

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Federal “Family Engagement” Plans

January 15, 2016  |  Posted in: Center for Individual Liberty  |  No comments

The U.S. Departments of Education and Health and Human Services have issued a draft policy statement calling for “family engagement” and “including” parents as “partners” in the education and rearing of their children.

In an op-ed in the Deseret News, our president, Connor Boyack, highlighted a few specific concerns of this policy proposal, including:

The policy statement in question refers to the importance of Parent Training Information Centers and calls on schools to “conduct periodic home visits.” Noting that the “health and mental health” of parents plays a factor in “parenting and children’s outcomes,” the federal bureaucracy calls on government to “promot(e) their wellness alongside their children’s.” Even worse, the feds are calling for a detailed database containing reports of “family engagement,” including assessments of the relationships between teachers and families.

State law in Utah makes clear that “a student’s parent or guardian is the primary person responsible for the education of the student, and the state is in a secondary and supportive role to the parent or guardian.”

It is important that state legislators protect parental rights; increasing federal encroachment threatens the autonomy of Utah families and the natural rights of parents in their stewardship over their children. You can encourage them to do so by using our lookup tool to find who represents you, and contact them to express your concerns.

The Utah Legislature said NO to REAL ID—So Why is the State Now Fully Compliant?

January 5, 2016  |  Posted in: Center for Individual Liberty  |  7 comments

Starting this year, the U.S. Department of Homeland Security is threatening that the TSA will begin rejecting driver’s licenses from states that refused to comply with the federal REAL ID guidelines. This now sets the stage for a significant battle over federal power and state’s rights—a battle Utah quietly bowed out of. While this is likely just more posturing by DHS to enforce deadlines it has constantly been extending in order to save face, it also serves as a not-so-gentle reminder of the expansion of federal power in the name of security.

In the wake of 9/11, Congress passed the REAL ID Act of 2005. The Act created a list of security mandates for state-issued driver’s licenses, effectively creating a nationally standardized ID card. Because Congress has no constitutional authority to legislate in this area, the implementation was predicated on a threat from the federal government that any non-compliant driver’s license would be rejected as an official form of identification for any federal purpose—including admittance to secure government facilities like military bases and TSA screenings at the airport. The statutory deadline for state compliance was originally May 2008. However, by that time not a single state was in compliance and nearly twenty states had passed laws or resolutions rejecting REAL ID. Utah joined the list with a resolution in 2009. Now, eight years later, the federal government is finally saying it will clamp down as it prepares to act on its threats.

In 2010, the legislature instructed the state to refuse to comply with REAL ID. However, by that time, it was too late for most of the substantive requirements of the law. In 2008, Senate Bill 81 required proof of citizenship for the creation of any state-issued government identification. This bill was designed to prevent immigrants without legal status from gaining government identification cards. The next year, the legislature passed Senate Bill 40 which gave driving privilege cards to Utahns without legal immigration status instead of Utah driver’s licenses which are reserved for those with citizenship or legal status. This required proving legal immigration status to the driver’s license office before being approved for a Utah license. Together, these two measures undermined Utah’s effort to opt-out of REAL ID, as the identity verification requirements under these bills pushed Utah into material compliance with many of the provisions of REAL ID.

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Enedina Stanger: Charged with a Felony for Using Medical Cannabis

December 22, 2015  |  Posted in: Center for Individual Liberty  |  No comments

Our new video briefly features the story of a young mother charged with a felony for seeking relief from cannabis, after opiate-based prescription drugs administered by doctors nearly killed her.

For more information on Enedina’s story, see this detailed interview we recently published featuring her story.

Private Attorneys General: Incentivizing the Protection of Liberty

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State and federal constitutions were designed by their authors to protect our rights against violation by the government. The enforcement of these protections often requires litigation and court orders—and thus a watchful guardian to protect the public’s rights.

While many believe that the Attorney General serves this function, this is not so. In a constitutional dispute between an individual and the government, the Attorney General’s primary duty is to defend the government—even when wrong. As such, the public interest requires watchful guardians who are independent of the government to challenge it in court when it is in violation of the public’s constitutional rights.

When victorious, it seems inappropriate to lay the legal costs at the feet of a few. The private attorney general doctrine resolves this inequity by allowing the court to award attorney’s fees to the prevailing party, incentivizing watchful guardians to jealously protect our God-given, constitutionally protected rights.

Here’s How Many Utah Parents Have Been Imprisoned for their Child’s Truancy

November 3, 2015  |  Posted in: Center for Individual Liberty  |  13 comments

Childhood education in our country has gone from private and optional to public and mandatory. However, schools were never intended, and are not equipped, to replace parents. Local control of education at the state, district, and neighborhood level is designed to ensure that schools remain an extension of the child’s parents at home—not a replacement for them. Unfortunately, it appears that Utah has moved away from this ideal. As attendance at government schools was legally made mandatory, the government subsequently created criminal penalties for failure to attend.

Compulsory education laws in Utah make it a class B misdemeanor for parents to keep children absent from school without a government-defined “valid” excuse, thereby turning parents into criminals for not taking full advantage of government schools on each and every government-assigned school day. A class B misdemeanor carries the possibility of jail time, placing parents behind bars if their children are not behind their desks.

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Police Officer Kills Sam DuBose, is Indicted for Murder—Because of a Body Camera

July 30, 2015  |  Posted in: Center for Individual Liberty  |  No comments

Last week, Sam DuBose was shot in the face and killed by a University of Cincinnati police officer, Ray Tensing, after being pulled over for not having a front license plate on his vehicle. Today, the officer was indicted for murder—a result that would not have happened, were it not for the officer’s body camera.

Officer Tensing’s statement to the reporting police officer affirms that Tensing “began to be dragged by a male black driver who was operating a 1998 Green Honda Accord.” Tensing claims that “he almost was run over by the driver of the Honda Accord and was forced to shoot the driver with his duty weapon.”

Another officer, Phillip Kidd, offered corroborating testimony to the reporting officer, affirming that he witnessed the Honda Accord drag Officer Tensing, and that he witnessed Officer Tensing [subsequently] fire a single shot.

Both officers lied.

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NEA’s Opposition to Homeschooling Not Based on Fact

July 9, 2015  |  Posted in: Center for Individual Liberty  |  One comment

In 2009, the long-time lawyer for the National Education Association (NEA), Bob Chanin, gave a farewell speech to a crowd of thousands of assembled delegates at the organization’s annual conference. In a moment of startling frankness, Mr. Chanin revealed the core concern and focus of this large and politically powerful education union.

“Despite what some among us would like to believe,” NEA’s effectiveness “is not because of our creative ideas,” he said. “It is not because of the merit of our positions. It is not because we care about children, and it is not because we have a vision of a great public school for every child.” Having made that clear, he moved on to his point:

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Can the Government Make Laws—and Punishments—Retroactive?

June 24, 2015  |  Posted in: Center for Individual Liberty  |  2 comments

“No bill of attainder, ex post facto law, or law impairing the obligation of contracts shall be passed.”
—Utah Constitution, Article 1, Section 18 (see also Article 1, Section 10 of the U.S. Constitution)

A fundamental principle of law in our country is that of prospective application—that laws should apply to individuals and actions in the future as opposed to retroactively in the past. For this reason, both the United States and Utah Constitutions expressly prohibit “ex post facto” laws—laws that apply after the fact. This principle was so obvious to the Constitution’s framers that some even opposed its inclusion, arguing that it was unnecessary.

Oliver Ellsworth, a delegate from Connecticut, said “there was no lawyer, no civilian who would not say that ex post facto laws were void in themselves” and James Wilson, a delegate from Pennsylvania, was literally embarrassed at the thought of what other nations would think if the Constitution made explicit something so obvious. He said he was “against inserting anything in the Constitution as to ex post facto laws. It will bring reflexions on the Constitution—and proclaim that we are ignorant of the first principles of Legislation, or are constituting a Government which will be so.”

After ratification of the Constitution, Thomas Jefferson remarked that some state constitutions did not see the need to even mention the prohibition on ex post facto laws because it was so obvious:

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