Driving With Your Phone: What You Need to Know

Driving With Your Phone

The National Highway Safety Administration has found that, as late as 2016, when blue tooth and hands-free cell phone technology was well established, 6% of all fatal crashes were caused by a “distracted driver.” In 14% of those cases, the “distraction” was the use of a cell phone policy. New Jersey is one of only three states nationally to receive dedicated distracted driving incentive grant funding from the National Highway Traffic Safety Administration.

New Jersey police target cell phone use while driving as a matter of policy. The state uses this funding to award overtime enforcement grants to 167 police agencies in the state.

All 496 police departments in New Jersey were invited to support yearly campaigns against “distracted driving”, whether they received grant funding or not. In April 2018, the first year of the campaign, there were 13,146 citations for cell phone use/texting and 5,697 for careless driving. In addition, participating police agencies issued 6,538 and 5,712 speeding and seat belt citations, respectively, many of which were issued as a result of an officer deciding to stop a car where the driver appeared to be using a cell phone.

The Scope Of Potential Liability for Drivers And Tweeters

Tickets for cell phone use are a serious matter, because the fines begin at several hundred dollars and can range up to close to a thousand dollars, and because a third offense can lead to a 90 day suspension of a driver’s license, regardless of whether the defendant otherwise has a clean driving record. Each ticket for cell phone driving remains on the driving record for a period of ten years for the purposes of calculating subsequent offenses. That means that someone may lose their driving privilege if cited for this offense once every three years. In addition, if the driver causes a collision resulting in injuries, the driver may be charged with criminal assault by auto, with the use of the hand held phone while operating the vehicle as the evidence of reckless driving. See N.J.S.A. 2C:12-1(c)(1). Finally, someone who sends a text knowing or even having “a special reason to know” that the intended recipient is driving and is likely to read the text message while driving, may be sued by someone injured in an accident caused by driver’s reading the text.

The Ban on Cell Phone Use

In the absence of an injury, the specific statute, N.J.S.A 39:4-97.3, prohibits “The use of a wireless telephone or electronic communication device by an operator of a moving motor vehicle on a public road or highway … except when the telephone is a hands-free wireless telephone or the electronic communication device is used hands-free, provided that its placement does not interfere with the operation of federally required safety equipment and the operator exercises a high degree of caution in the operation of the motor vehicle.” In addition, the statute restricts “one handed driving” while using a cell phone in the other hand, unless:

“(1) The operator has reason to fear for his life or safety, or believes that a criminal act may be perpetrated against himself or another person; or (2) The operator is using the telephone to report to appropriate authorities a fire, a traffic accident, a serious road hazard or medical or hazardous materials emergency, or to report the operator of another motor vehicle who is driving in a reckless, careless or otherwise unsafe manner or who appears to be driving under the influence of alcohol or drugs.

The New Jersey’s Appellate Division held that the statute permits “a motorist could use one hand to “activate, deactivate, or initiate a function of the telephone,” but once engaged in the conversation, the use of the telephone must be “without the use of either hand.” State v. Malone, 2011 WL 2582730 (Appellate Division, unpublished decision).

The New Jersey Legislature then amended the statute to define a Hands-free wireless telephone as “a mobile telephone that has an internal feature or function, or that is equipped with an attachment or addition, whether or not permanently part of such mobile telephone , by which a user engages in a conversation without the use of either hand; provided, however, this definition shall not preclude the use of either hand to activate, deactivate, or initiate a function of the telephone.”

Thus, there are four defenses that are clear from the face of the statute; (1) the driver was not talking on the phone, merely placing or ending a call; (2) the driver was using the phone to alert someone of a crime being committed; (3) the driver was using the phone to call for an emergency report; or (4) the driver was using the phone to report another driver for dangerous driving. In addition, the statute only appears to make it improper to use a device as a telephone, and not for other purposes such as GPS.

In addition, the statute only bars “use” by the “operator” of a “moving vehicle.” It, therefore, does not bar someone in the passenger seat from carrying on a conversation. It also does not bar the driver from talking while stopped. Clearly then, a driver may pull off the side of the road to take a quick call without violating this statute. Whether a driver may use the phone while stuck in a traffic jam or at a long traffic light is less clear. Finally, the statute is unclear on whether the driver may use a handheld for activities other than telephone calls while moving. In particular, the use of a cell phone as a GPS device, particularly by drivers who like to hold the phone so they can see the visual turn directions may look to a passing police officer as if they are talking.

Defenses and Potential Pleas

Thus, a driver charged with violating N.J.S.A. 39:4-97.3, can defend herself by arguing that she was not driving, just dialing, that she was making an emergency call to stop a crime, that she was making a call to emergency responders to report a road emergency or another reckless driver, may be sued by someone injured in an accident caused by the driver’s reading the text or that she was not moving at the time she used the phone, or that she was using the device for non phone purposes, such as a GPS system, or that the phone was in her hand, but others were talking.

N.J.S.A. 39:4-97.3 also explicitly contemplates that the charges may be plea bargained. It provides that second or subsequent offenses need not be charged or treated as such, even within the ten year period.

Stricter Rules for New and Probationary Drivers

Holders of learner’s permits, probationary and examination permits are barred from using any cell phone, or other “interactive wireless communication devices” whether hands-free or hand held. N.J.S.A. § 39:4-97.3. Any ticket or conviction by a driver with one of these licenses can lead to both a suspension of that license and a delay in eligibility for a permanent license.