49 CFR 392.80 – No Texting While Driving a CMV

texting while driving

The Law Regarding Texting While Driving

This particular law that prohibits texting while driving is federal in origin. Most states have adopted the language of this law and incorporated it into their administrative code. The federal statute reads:

§ 392.80 Prohibition against texting.

(a)Prohibition. No driver shall engage in texting while driving.

(b)Motor carriers. No motor carrier shall allow or require its drivers to engage in texting while driving.

(c)Definition. For the purpose of this section only, driving means operating a commercial motor vehicle, with the motor running, including while temporarily stationary because of traffic, a traffic control device, or other momentary delays. Driving does not include operating a commercial motor vehicle with or without the motor running when the driver moved the vehicle to the side of, or off, a highway, as defined in 49 CFR 390.5, and halted in a location where the vehicle can safely remain stationary.

(d)Emergency exception. Texting while driving is permissible by drivers of a commercial motor vehicle when necessary to communicate with law enforcement officials or other emergency services.

Much like the law prohibiting making voice calls using a hand held mobile device, the law against texting sees broad application. Even if a driver is not texting, the mere fact that he is holding a mobile device could be enough to trigger a citation under this law.

What does the law mean and who does it apply to?

In short, this law prohibits drivers of commercial motor vehicle from texting while driving. The way the law is worded, it also places a burden on a motor carrier to neither allow nor require drivers to text while driving.

What are the consequences of being found guilty of texting while driving a commercial motor vehicle?

A texting while driving conviction is a criminal charge in Arizona according to A.R.S. 28-5240, which states:

A. In addition to civil penalties imposed under this chapter, a motor carrier, shipper or manufacturer who operates or causes to be operated a commercial motor vehicle in violation of this chapter or who knowingly violates or knowingly fails to comply with any provision of this chapter or with any rule adopted pursuant to this chapter is guilty of:

1. A class 2 misdemeanor for a first offense.

2. A class 1 misdemeanor for a second offense.

3. A class 6 felony for any subsequent offense.

For a first offense, which would be charged as a class 2 misdemeanor, there is the potential for up to a $750 fine plus surcharges of $630, up to 4 months in jail, and probation. In practice, jail time and probation are unlikely.

This is a serious violation under the FMCSA’s Safety Measurement System (SMS). It is a 10-point violation, the same as reckless driving or speeding by 15 mph or more.

Defenses

The citing officer could not see into the defendant’s vehicle to observe the violation.

We are always surprised with how officer’s claim to be able to see the interior of a commercial motor vehicle while driving along at highway speeds, especially when a truck, for example, is usually much higher than a police vehicle. Regardless, many police officers claim to have magic x-ray vision and will issue tickets for texting when no texting has taken place. So as you might gather, the ability of the officer to have observed the alleged violation is one area we challenge.

The defendant was NOT texting.

The driver may be able to obtain phone records that show he or she was not texting at the time of the alleged violation.

There was an emergency.

There is an “emergency exception” that excuses texting while driving a commercial motor vehicle in the event of an emergency.

2 Comments on “49 CFR 392.80 – No Texting While Driving a CMV”

  1. 49 CMV 309.17 Driver looking at pictures while driving? Where in the DOT rules does it state that a driver is forbidden to even look at his phone? It Doesn’t! So how can a HP write a violation that does not exist?

    1. We have had instances of police officers issuing citations for violations that did not actually exist. Sometimes these are resolved quickly when the prosecutor realizes what is going on, other times the driver is put in the unfortunate position of having to defend himself against the charge. We also see officers writing tickets when the facts do not match the alleged violation, which again leaves the driver in the unjust position of having to defend against a charge that should have never been brought. If you would like to discuss your case in more detail and talk about options, give us a call at 480-626-5415.

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