The Law Regarding Using a Hand Held Mobile Phone While Driving
This particular law is federal in origin, and most states have adopted the language of this law and incorporated it into their administrative code. The federal statute reads:
49 CFR 392.82(a) Using a hand-held mobile telephone.
- No driver shall use a hand-held mobile telephone while driving a CMV [commercial motor vehicle].
- No motor carrier shall allow or require its drivers to use a hand-held mobile telephone while driving a CMV [commercial motor vehicle].
This law is very similar to 49 CRF 392.80 that prevents texting while driving. However the law about not using hand held mobile phones while driving seems to be more broad than the law prohibiting texting. Although the law seems to contemplate only making voice calls, it is easy to imagine an officer issuing a ticket for this if he just sees a driver holding a phone. It would then be up to the driver to convince a judge or prosecutor that he was not in fact talking on the phone but just holding it for some reason.
“Using a hand-held mobile telephone actually has a specific legal meaning. 49 CFR 390.5(T) defines “using a hand-held mobile telephone” as:
(1) Using at least one hand to hold a mobile telephone to conduct a voice communication;
(2) Dialing or answering a mobile telephone by pressing more than a single button; or
(3) Reaching for a mobile telephone in a manner that requires a driver to maneuver so that he or she is no longer in a seated driving position, restrained by a seat belt that is installed in accordance with 49 CFR 393.93 and adjusted in accordance with the vehicle manufacturer’s instructions.
Based on that definition, using a mobile device for other functions, like streaming music or a podcast, would not technically be a violation of this statute. Nevertheless, the word of the law does not stop law enforcement from issuing citations anytime they see a commercial driver holding a mobile phone or when they see a lit mobile phone screen in a moving commercial vehicle.
What are the consequences of being found guilty of texting while driving a commercial motor vehicle?
This violation is a criminal charge 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 considered 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 couldn’t see into the defendant’s vehicle to observe the violation.
How did the officer see into the defendant’s vehicle while driving along on the highway? There is a good chance the officer couldn’t actually see what the defendant was doing (or not doing) and he’s just making a guess. The officer knows most people will end up paying the massive fine and never take the case to trial, so this is a great way for police officers to generate revenue. Officer’s don’t seem to care that a charge like this could seriously damage the career of a commercial driver. Let’s not even get into the fact that all police officers talk on phones and radios while driving, that officers have a computer attached to their dashboard that they use to look up information while driving, or the fact that officers commit any number of civil and criminal traffic violations in the course of their “revenue generation” duties.
Was the defendant “using” a hand held mobile phone?
To answer this, we must look at the definition of using a hand held mobile phone found in 49 CFR 390.5(T):
As noted earlier, using a hand-held mobile telephone means:
(1) Using at least one hand to hold a mobile telephone to conduct a voice communication;
(2) Dialing or answering a mobile telephone by pressing more than a single button, or
(3) Reaching for a mobile telephone in a manner that requires a driver to maneuver so that he or she is no longer in a seated driving position, restrained by a seat belt that is installed in accordance with 49 CFR 393.93 and adjusted in accordance with the vehicle manufacturer’s instructions.
The driver may be able to obtain phone records that show he or she was not using the mobile telephone at the time of the alleged violation. The defendant may also be able to argue that he was just picking his phone up off the floor, or just pressing answer on his dash-mounted phone. This argument will depend on the facts of the particular case.
Was there an emergency?
This law contains an “emergency exception” that allows the use of a mobile telephone while driving in the event of an emergency. See 49 CFR 392.82(c): “Using a hand-held mobile telephone is permissible by drivers of a CMV when necessary to communicate with law enforcement officials or other emergency services.”