Prohibitions on using objects and devices in a manner that impairs the perception of road participants: A de lege ferenda proposal

Abstract

The authors argue that the current wording of the provisions of the Polish Road Traffic Code regarding the use of electronic devices while driving or while entering or crossing the road is flawed, which makes their enforcement difficult and, above all, undermines the purpose for which they were created. Applying successive stages of interpretation (linguistic, systemic, functional), the authors decode the legal norm and then analyse the literature on the issue, concluding that this norm has not been correctly formulated. For reasons that remain unclear, in the case of drivers, the legislator limited the prohibitions exclusively to mobile phones; in the case of pedestrians, they were further limited to electronic devices. Yet in reality, there are many other objects whose use may impair the perception of road traffic. Therefore, the authors offer a proposed wording of the provisions discussed. Finally, they draw attention to the drawbacks of regulations penalizing the discussed behaviours, because the inability to adjust the penalty to the circumstances of the misdemeanour violates the principle of proportionality of the penal response.