No smoking sign in car

Recently, the president of the Virginia Senate signed House Bill 1348, which fines drivers for smoking in cars with children younger than 8. The bill, which awaits the signature of the governor, has good intentions. Secondhand smoke is a serious health hazard. Since the early 1990s, the government has classified it as a known human carcinogen, responsible for thousands of deaths annually among nonsmokers.

But Gov. Terry McAuliffe should not sign the proposed bill. The new law threatens the Fourth Amendment right to be free from unreasonable searches and seizures without providing substantial benefits to public health.

The new law relies on the police for enforcement, but it doesn’t authorize officers to stop drivers just for smoking with children in a car. So the only way to enforce this law is to come up with a reason other than smoking — essentially requiring a pretext to pull a smoker over.

It is not hard for police officers to find a reason for a traffic stop. At some point, every driver is guilty of some traffic infraction. Can any of us honestly say that we did not exceed the speed limit sometime in the past few days?

Relying on traffic violations to enforce the new smoking law encourages pretextual policing. This is a questionable practice. Traffic laws have given police officers tremendous discretionary authority to stop whomever they want, whenever they want.

Officers can even resort to a minor traffic violation when they don’t have justification to stop drivers they suspect may be guilty of violating other laws, particularly drug laws. Once pulled over, it’s much easier to find sufficient reasons to ask questions and search the car for crimes other than the initial traffic offense.

This is exactly what the Fourth Amendment to the Constitution was intended to prohibit. The government cannot stop people and search them without probable cause. But if traffic laws always give the police probable cause, then they essentially wipe out this constitutional protection. By adding one more fine that the police can impose, the bill will increase the likelihood that the people who are most likely to be stopped will be even more vulnerable to the police’s discretionary power.

And smokers are precisely the kind of population that needs the government’s support, not surveillance. This law will punish cigarette addicts — 70 percent of smokers want to quit — without helping them give up the habit for good.

The 17 percent of Americans who continue to smoke are less likely to have graduated from high school, and more likely to live below the poverty level, than nonsmokers.

Smoking is, in short, a problem of the poor. And because the new regulation relies on police law enforcement, it will increase police suspicion of this group of citizens. The kids on whose behalf the law is passed will not be made substantially safer. Instead, their parents will be in more debt and subject to more run-ins with the criminal justice system.

To be sure, secondhand smoke is a big problem — especially for kids — but this bill is not the way to solve it. Kids are vulnerable to the effects of secondhand smoke: it can stunt learning and lung growth, and can trigger asthma, bronchitis and respiratory infections. And they are captive: Kids cannot choose to leave a smoke-filled room or car. For these reasons, the 2006 Surgeon General’s Report deemed secondhand smoke “particularly dangerous to children,” noting that kids are more exposed than adults to tobacco smoke.

But Virginians need not choose between public health and the Constitution. There are better ways to protect children from secondhand smoke. Virginia could start by strengthening smokefree laws — banning cigarette use entirely at restaurants and on patios. It should also fund prevention and cessation programs at levels recommended by the Centers for Disease Control — a move that would save taxpayer dollars in the long run by helping smokers quit for good, and making sure kids never start. And most obviously, the state should raise the cigarette excise tax, currently the second lowest in the nation.

These kinds of changes are badly needed. The American Lung Association, which tracks state initiatives to reduce tobacco use, has given our state failing grades for each of the categories it monitors. Worst of all, Big Tobacco has tied the hands of cities to pass stringent smoking regulations. Virginia prohibits local governments from passing tougher laws than the commonwealth’s lax standards.

In short, Virginia has a lot of room for improvement.

That the state would finally begin to “get tough” on smoking by stopping drivers on pretextual grounds should make Virginians suspicious. In a state that has never made tobacco control a priority, the proposed law is as mean-spirited as it is wrongheaded.

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Sarah Milov is an assistant professor of history in the University of Virginia’s Corcoran Department of History. Contact her at smilov@virginia.edu.

Sarah A. Seo is the Charles W. McCurdy Fellow, University of Virginia School of Law and Miller Center of Public Affairs. Contact her at ss7da@virginia.edu.

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