I just received a ticket for using my cell phone while using the handsfree accessory, speaker phone on my iPhone. It seems the wording of the law in Oregon allows this, ORS 811.507 - Operating motor vehicle while using mobile electronic device . Maybe I am wrong and as soon as you touch the cell phone you are violating the law. It seems if you are using the speaker phone, which is a “built in feature”, the wording from the law, “Hands-free accessory means an attachment or built-in feature for or an addition to a mobile communication device, whether or not permanently installed in a motor vehicle, that when used allows a person to maintain both hands on the steering wheel.” The feature definitely allows a person to maintain both hands on the steering wheel. What do others say about the legality of this wording? Thanks in advance for your thoughts.
Moderator Action
Questions about legal opinions belong in our IMHO forum.
Moving thread from General Questions to In My Humble Opinion.
It hardly matters. You can :
-
Fight the ticket. Cost : ~ a few hundred bucks for a cheap attorney.
-
Pay the ticket but go to court first to “plea bargain” it down. This is very common in traffic courts. Cost : ~$100 in court costs, plus whatever the remainder is after the bargain, plus increased auto insurance rates if it is a moving violation.
-
Do defensive driving in lieu of punishment. Not available in all states. Cost : defensive driving fees, court costs : about the same as #2.
-
Get deferred adjudication from traffic court. This is about the same as #3 but involves higher court costs.
-
Pay the ticket right now. Check the ticket and the website for the issuing county. In some cases, if you pay immediately, you get a 50% discount. This means no going to court. You should factor in increased rates over the next few 3 years if it is a moving violation, however.
Basically, no matter what you do, a few hundred bucks is leaving your wallet. The absolute amounts of money are very similar. You should just do whatever is easiest and least stressful on you. It doesn’t really matter whether you are guilty or not. A cop wrote a ticket on a pad of paper. You are going to pay money. Simple as that.
Did you have to take one hand off the wheel to monkey with the phone? That looks to be the sticking point, “allows a person to maintain both hands on the steering wheel.”
The speaker phone feature on any phone is not an accessory, it’s part of the phone.
From the linked site:
So, if you can use the speaker without taking either hand off the steering wheel, it’s a hands-free accessory. If you have to take a hand off the steering wheel to activate the speaker phone, it’s not a hands-free accessory.
If you had both hands on the wheel with no phone in your hand, how did the officer even know you were using it? I see many people using their speakerphone while still holding the phone in one hand, as though holding it in front of your mouth is somehow safer than holding it to your ear.
Habeed lists several options but you don’t have to have an attorney to fight the ticket (#1). In some cases the cop doesn’t show and the ticket is dismissed. The cop will have to testify as to what he saw, and if he can’t say that he saw a phone in your hand then you might be acquitted. However, if his account is in conflict with yours, the court tends to believe the professionally trained law enforcement officer. If you lose, you will be liable for the ticket and also court costs, so there is some risk here. IANAL.
Read the OP and the link. This is specifically addressed.
Speaking as a fellow Oregonian here…
I have read that law many times. It seems to me that this is yet another example of how the lawmakers in Salem didn’t write the law very clearly and they are leaving it to the enforcement agencies to make up the rules as they go along.
The law doesn’t specifically say you aren’t allowed to touch the phone.
It only says you must use a device which (hypothetically) would permit a person to avoid touching the phone.
Now, if a cop wants to say “you touched the phone, therefore you broke the law” then that cop is making up rules which aren’t actually in the law.
But I predict that the judge will side with the cop because the alternative is to let you and hundreds of others like you go scot free and the judge won’t like the idea of setting such a precedent. The judge will think it’s obvious that the intent of the law was to stop people from touching their phones while driving (ignoring the fact that the law completely fails to say that).
I’ve seen the same thing happen with other laws in Oregon. The legislature writes a poorly-worded law and then the agencies tasked with enforcing the law make up their own rules and then they set precedents that these people on this side of the line are found guilty and those people on that side of the line get off scot free. And so it goes.
Well, I agree that from a language lawyer standpoint the law could be more clearly written. It would have been better to say that using device held in either hand while driving is prohibited–then you don’t even have to say anything about features or accessories. But still, the intent is crystal clear. We all know the the law is to make sure people have both hands on the wheel and eyes on the road.
In Oregon: While driving,
Can I drink a can of …?
Eat a homemade sandwich?
Scratch my head?
Use my left hand & on finger of the right hand just touching the steering wheel?
Was pulling a mobile home one time and the way station had just opened.
I went in with my paper work.
The older officer was very pleasant.
I was all legal as far as I could see.
He said, “Son, I did not want to work today and so I promised myself I would fine the first truck in here so sit back, you are going to be harder than I thought.”
30 minutes later he wrote me a ticket for about $137.00 dollars.
I called the boss and asked what I should do. He said to use one of the presigned emergency checks to just pay it. It was not worth the hassle.
IMO, if you had two hands in view and he could not see that the phone was active, it was just about $$$, he was not at all concerned about safety in any real way.
YMMV
In the movie Used Cars, Wendy Jo Sperber plays a sixteen-year-old who freaks out when she realizes that she has to take one hand off the wheel to start the car. Obviously, taking a hand off the steering wheel for a moment is perfectly normal and we do it all the time. You take one hand off the wheel to roll down the window, to turn on the windshield wipers, to adjust the climate controls, to shift gears, or to adjust the visor. All these things are perfectly legal. Heck, it’s even legal for you to take a hand off the steering wheel to smoke a cigarette, unfold a map, put a CD into the stereo, or take a sip of coffee. Now you want to say it’s obviously illegal to touch a button on your phone because it would require taking a hand off the steering wheel?
Here’s a brain teaser for you. Suppose I have two phones, one functional and one dead. The functional phone is paired to the car via Bluetooth. I hold the dead phone up to the side of my head and pretend to talk on it. Am I breaking the law in Oregon? Okay, now while I’m doing that, the function phone rings and I answer it using the button on my steering wheel. I’m still holding the fake phone and now I’m actually talking on the real phone. Am I breaking the law in Oregon?
Brain teaser number two: I’m talking to my brother who’s sitting in the passenger seat. We are arguing about politics. I’m holding a Big Gulp in my right hand, steering with my left hand. My cell phone rings, I answer it with Bluetooth. My brother’s cell phone rings, he holds it in his hand, then says to me “Hey Bro, it’s for you” and holds the phone up to the side of my head. I’m now talking to three different people and I only have one hand on the wheel. Am I breaking the law in Oregon?
This is the reason why you’re breaking the law when the cop says you are. In practice, virtually all of the time, that’s how it goes.
Studies have shown that the greatest danger of using a cell phone while driving is not the busy hand but the attention blindness. If a person is talking on the phone their attention is diverted to the conversation and they miss crucial elements of their real environment. Your eyes can be open and aimed right at something (pedestrian, oncoming car, etc.) but if your brain is too busy with something else it won’t register. Yet still laws continue to be enacted to allow hands-free phones while prohibiting handheld phones.
Maybe not but it’s a moot point since you have wrapped your car around a tree you didn’t see.
… which just goes to show how poorly written the law is. What I described is obviously very dangerous, and yet the law doesn’t prohibit it. If they lawmakers really believed that talking on a phone while driving is so dangerous, they should have just outlawed it entirely. But they caved in to pressure from the trucking lobby, the taxi lobby, the agriculture lobby, and the Bluetooth lobby, and put all these exceptions in it. Then on top of that, they didn’t even specify whether you’re allowed to touch the phone while using a Bluetooth headset.
That’s why I don’t let anyone ride in my car with me. Too distracting. Especially kids, always wanting something or asking questions.
All the airplanes will start crashing tomorrow.
Don’t know if you’re kidding, but there’s something about talking on a phone that requires more brain cycles than talking to the person next to you in the car. Scientists don’t seem to know why but there is some speculation that the brain has to devote energy to synthesizing some sort of image of where that voice is coming from. You are imagining the person you are talking to and the setting they are in, which doesn’t happen with an in-person conversation.
However, as a father of two I can confirm that kids in the car can be a big distraction.
I have no opinions, thoughts comments regarding the legal angle of this issue, especially since it seems to be focused on the question of touching the phone, and the thing I wanted to bring to everyone’s attention is the fact that the reason using your phone while driving is dangerous is in no way related to the fact that you are touching it, or not touching it. The problem is that you are talking on the phone to someone who is not in the car with you, and that is having a very serious, measurable, negative impact on your ability to drive safely.
Pretty in-depth examination of the issue
So while I sympathize with the bummer of tickets and The Man and especially if you were within the letter of the law… the real fact of life, legalities aside, is that using your phone at all is unsafe, and I would be tickled pink if they banned it completely, because most people won’t stop on their own. They think other people can’t handle it, but they can. Which is also what drunks think.
just sayin’