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Tuesday, February 26, 2019

Fast food justice

One of my professional regrets is that I was unable to place this piece in any law review, although it remains my most-downloaded piece on SSRN. It was too early in the days of online supplements, I was entering only my third year, and I could not find any place for it.

This case would make a wonderful addition to the sequel (H/T: Peter Oh of Pitt): A Connecticut man is challenging a $ 300 traffic ticket for distracted driving by arguing that what the officer believed was his cellphone was a McDonald's hash brown that he was eating for breakfast while driving.* He was convicted by a magistrate, appealed to a trial judge, and is awaiting ruling.

[*] Query how eating while driving does not distract a driver.

Posted by Howard Wasserman on February 26, 2019 at 05:20 PM in Criminal Law, Food and Drink, Howard Wasserman | Permalink


"Query how eating while driving does not distract a driver."

I assume there are two parts to the (potential) answer here:

1) using a cell phone while driving is considered (for better or worse - I think probably better, but I suppose others could disagree) to be per se "distracted driving" in many jurisdictions, so no other evidence is needed for a charge, while in other cases, the police officer would need to show evidence that the driver was distracted by the activity. We may, I think, assume here that no other evidence was provided.

2) Is it that implausible that you could take a McDonald's hashbrown and put it to your mouth, take a bite, and put it back down without being significantly distracted? It doesn't seem at all implausible to me, unless every single thing a driver does other than stare at the road without talking to anyone at all, counts as distracted driving. I don't think this is obviously any more likely to be "distracted driving" than, say, taking a drink of water from a bottle. That _could_ lead one to be distracted, but then, we'd need some evidence of it, not just a presumption, and that again seems to be missing here. Given this, I don't see why this would seem mysterious.

Posted by: Matt | Feb 27, 2019 7:03:49 AM

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