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Judge Takes on Mobile Phone Ban

If Sex at the Wheel Is Legal, Why Isn't Telephoning?

A German judge is trying to overturn the law against using a mobile phone while driving. If shaving, masturbation and having sex while driving are not illegal, he asks, then why is making a call so bad?

A German motorist was caught using his mobile phone while driving and eventually fined €245 ($350). That in itself is not particularly unusual. But what has caught the attention of the German media is what the judge who heard the motorist's appeal against his fine had to say afterwards.

Judge Albert Bartz from Gummersbach in the state of North Rhine-Westphalia said that the road rules in regard to this issue may actually violate the principle of equality as enshrined in the German constitution. After all, Bartz wrote in his ruling, if it is against the law to use a mobile telephone while driving, then why isn't it also illegal to do other dangerous things while you're behind the wheel? As examples of such risky activities, the 62-year-old judge mentioned masturbation and engaging in sexual activity -- "either under or over clothing" -- with a consensual passenger.

Others examples include moving things around in the car, fiddling with the car radio, programming a navigation device, shaving with an electric razor or waving one's left hand out of the car window while holding a conversation with passengers. And what if you're an amputee driving a car with only one hand, without a prosthesis, while having a conversation at the same time? And then there's that common driver's pastime of "dictating something onto a recording device -- say a decision about a fine, a charge or a verdict."

At which stage one might suspect the judge was just being facetious after a long day in court. But it turns out that he does have a point to make.

According to current German road rules, a driver can use a mobile telephone while driving -- as long as he or she doesn't have to hold the phone or adjust the phone's headset while in control of the vehicle. "You have to question whether using a mobile telephone in the car should be punished any further, when 95 percent of the most dangerous types of behavior (while driving) are not subject to any fines," Bartz told the local newspaper, the Gummersbach-based Oberbergische Volkszeitung.

Bartz also points out that it is hard for police to tell exactly what a driver has been doing with their hands, especially in an era when there are so many new digital devices they could be using while driving. "The police have no legal basis for taking action against a driver who is, for example, letting their left hand dangle out of the open car window while they use their right hand to work on a laptop that's sitting on the passenger's seat and steer the car with their thighs," Bartz said. "In my opinion, the current legislation is outdated."

Bartz has forwarded the -- in his opinion -- offending piece of legislation to Germany's highest court, the Constitutional Court in Karlsruhe. A spokesperson for the Constitutional Court told the Oberbergische Volkszeitung that a decision on the issue wouldn't be made until September at the earliest.

Bartz emphasized that he has never been caught using his mobile phone in the car and that he also avoids other risky activities while driving. As he told the mass circulation daily Bild: "Sex at the steering wheel is strictly off-limits for me."

cis -- with wires