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Friday, January 15, 2010

Turn on, but don't tune in

We had a pretty good discussion here yesterday about what the new Oregon cell phone driving law actually prohibits. "Using" a "mobile communication device" (including a cell phone) in any way while operating a motor vehicle is a violation, unless one of the exceptions applies. That would appear to include reading e-mail, checking sports scores, and using Shazam to identify that cool song on the car radio. Moreover, it appears that one is "operating" a vehicle if the ride is turned on and the driver is behind the wheel, even if it's just sitting at a long stop light.

However, it appears that merely turning the phone on or off, or turning any of its features on or off, does not constitute "using" it for purposes of this law. And so if you need an excuse, you might try, "Your honor, I was just turning the ringer off," and see how you do. Good luck with that.

An interesting question is whether using one of the local programs on a phone, which requires no internet communication, is an impermissible "use." My bet would be that it is, but that would seemingly discriminate between the address book on an old-fashioned Palm Pilot (which I think would be legal, because that's not a communication device, is it?) and the same data on a smart phone. If you're looking at your calendar on Google calendar, you're in trouble. But if it's just on your creaky old PDA, with no phone in it, you very well might be all right; that would be just like looking at a paper Filofax (remember those?). So stand by with, "Officer, it's not a phone -- trust me!"

Here's how the law reads, according to the official state legislature website:

811.507. (1) As used in this section:
(a) “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.

(b) “Mobile communication device” means a text messaging device or a wireless, two-way communication device designed to receive and transmit voice or text communication.

(2) A person commits the offense of operating a motor vehicle while using a mobile communication device if the person, while operating a motor vehicle on a highway, uses a mobile communication device.

(3) This section does not apply:

(a) To a person who is summoning medical or other emergency help if no other person in the vehicle is capable of summoning help;

(b) To a person using a mobile communication device for the purpose of farming or agricultural operations;

(c) To a person operating an ambulance or emergency vehicle;

(d) To a person 18 years of age or older who is using a hands-free accessory;

(e) To a person operating a motor vehicle while providing public safety services or emergency services as a volunteer;

(f) To a person operating a motor vehicle while acting in the scope of the person's employment as a public safety officer, as defined in ORS 348.270;

(g) To a person operating a motor vehicle in the scope of the person's employment if operation of the motor vehicle is necessary for the person's job;

(h) To a person activating or deactivating the mobile communication device or a function of the device;

(i) To a person who holds a valid amateur radio operator license issued or any other license issued by the Federal Communications Commission and is operating an amateur radio;

(j) To a person who operates a two-way radio device that transmits radio communication transmitted by a station operating on an authorized frequency within the citizens' or family radio service bands in accordance with rules of the Federal Communications Commission;

(k) To a person using a function of the mobile communication device that allows for only one-way voice communication while the person is:

(A) Operating a motor vehicle in the scope of the person's employment;

(B) Providing transit services to persons with disabilities or to senior citizens; or

(C) Participating in public safety or emergency service activities.

(4) The offense described in this section, operating a motor vehicle while using a mobile communication device, is a Class D traffic violation.

Have fun on the loophole hunt, everybody.

Comments (24)

(3) This section does not apply:

(d) To a person 18 years of age or older who is using a hands-free accessory

May I text as long as I have a Bluetooth thing in my ear? May I text as long as I'm talking with someone while I have a Bluetooth thing in my ear? It seems that Bluetooth is the $30 get out of jail free card.

Nextel direct connect.

One thing I need to know about the new law is what constitutes a "motor vehicle." I would think it obviously would be a vehicle with a motor, such as a car, truck or motorcycle. In that case, I would still be free to talk on my phone while riding my bike, right?

On the other hand, bicyclists have to generally follow the the same rules of the road as cars--though there are exceptions, such as riding on sidewalks outside of downtown.

So what's the scoop on this?

I guess if you are a long haul truck driver you could not only use a cell phone in one hand and use the CB in the other with immunity.

Does not seem to apply to bicycle riders at all. And one of two things seems possible: either (a) the hands-free accessory lets you do anything with it, or (b) you can't use your GPS or map accessory without pulling over and stopping.

The iPhone and ipod touch are virtually identical, with the exception that the iPhone has a wireless modem built in. From the exterior, it would be impossible to tell the difference.

Id like to try the ipod excuse when caught texting: "officer, I was changing the song on my ipod."

This "exemption" is kind of interesting too:

(h) To a person activating or deactivating the mobile communication device or a function of the device;

As I say, just turning the phone or one of its features on or off is legal.

May I text as long as I'm talking with someone while I have a Bluetooth thing in my ear?

I have to say, the text of the law just seems horribly, horribly vague and disjointed to me. I definitely would have added in explicit coverage for bicycles. I would definitely have left off "motor" when discussing vehicles because of this:

Oregon Revised Statutes (ORS) Pertaining to Bicycles

814.400 Application of vehicle laws to bicycles.

(1) Every person riding a bicycle upon a public way is subject to the provisions applicable to and has the same rights and duties as the driver of any other vehicle concerning operating on highways, vehicle equipment and abandoned vehicles, except:

(a) Those provisions which by their very nature can have no application.
(b) When otherwise specifically provided under the vehicle code.
(2) Subject to the provisions of subsection (1) of this section:

(a) A bicycle is a vehicle for purposes of the vehicle code; and
(b) When the term “vehicle” is used the term shall be deemed to be applicable to bicycles.

With regard to Bluetooth devices, you'd think that their invocation that "allows a person to maintain both hands on the steering wheel" would have been a good place to stop but then they muddied it completely with subsequent rules.

(g) Bumper sticker: "Realtor On Board -- (keep a safe distance)"

It SHOULD apply to bike riders too.

Saw someone the other day riding a bike with an ipod in one ear (saw the other ear bud dangling), and a cell phone up to his other ear, only one hand on his bike, and a ginormous backpack on his back. It's like watching Darwinism on two wheels...

Jack ... Would I be correct in assuming that under 811.507(3)(g) that a kid delivering pizzas could be texting all the way to and back from his deliveries without having to worry about being given a ticket?

Not only the pizza — your taxi driver can text until he kills you both.

Not only the pizza — your taxi driver can text until he kills you both.

We've been using dash-mounted MDTs for many years now...similar to what the cops have but simpler. Still have to track people down on their cell phones though, especially late at night when they are wasted.

Personally, I prefer to dial their numbers while I'm stopped at a light, then do the talking as I'd rolling up to the address. No sense trying to text your customers, it's too time consuming.

Thanks for the post Darrelplant. I was going to look it up and post it myself, but no need to anymore.

Here is what I do not get about bicyclists. Most people I know who use bicycles as their primary mode of transportation tend to have a Bachelor's degree or higher in proportion to the general population.

If, it is true that on average, bicyclists tend to be higher educated than the general populace, then why is there a visible segment of bicyclists who behave in a manner as if the laws governing motor vehicles AKA automobiles, bicycles, and on, do not apply to their primary mode of transportation?

Wouldn't it imply a fundamental stupidity on their part if they do not even know if a bicycle is a "motor vehicle" under State law?

(h) To a person activating or deactivating the mobile communication device or a function of the device;

Now, the word "activating" has a range of interpretation. Simply turning it on doesn't really activate a cell phone, but dialing a number does, because then it puts the phone to its true purpose in life, which is to be a communication device, not a an on-off device.

Depends what the meaning of the active word is, is.

If, it is true that on average, bicyclists tend to be higher educated than the general populace, then why is there a visible segment of bicyclists who behave in a manner as if the laws governing motor vehicles AKA automobiles, bicycles, and on, do not apply to their primary mode of transportation?

Subject drift, but it's an interesting question, one I've also given some thought to. At some level, the people riding bicycles are the same as those driving cars — even, at different times, the same people. So it's likely not the people, but either the bicycles or the laws, or a combination of them, that produce this effect (there's no reason to deny that it happens). From my own experience, I know how easy it is to get the idea, when on a bicycle, that when I respect a stop sign by actually stopping, I not only expend more effort (usually, in my mind, a good thing), but also increase the amount of time I'm at or in the intersection, have less maneuverability stopped or starting up than when the bike is moving, present more of an obstruction for other traffic and therefore am more vulnerable to hazard from other traffic. So, traffic permitting, sometimes I don't fully stop. It's an idea that would come to pretty much anyone who's on a bicycle.

Now, the word "activating" has a range of interpretation. Simply turning it on doesn't really activate a cell phone, but dialing a number does, because then it puts the phone to its true purpose in life, which is to be a communication device, not a an on-off device.

Great point! So you're allowed to pick it up and dial a number?

A cell phone that's on is "activated" much the way a motor vehicle stopped at a red light is "operated".

Is using your speaker phone on the cell considered hands free? Most of them do have that option.

Think I'm covered, have a company supplied cell and get paid a fixed monthly amount to use my vehicle for work.

Matt Richtel in the NYT today ("Forget Gum. Walking and Using Phone Is Risky") calls attention to the danger pedestrians pose to themselves. Perhaps, in addition to application to bicyclists, the law should be expanded to prohibit cellphone usage while doing anything else on a public thoroughfare.

It has already been noted in this forum that Darwin's hypothesis regarding natural selection might be the only regulation required for cyclists: the commenter had recently observed a cyclist collide with a tree while chatting on a cellphone. Yet natural selection is a slow process -- far too sluggish to avoid litigation (civil or criminal) for a motor vehicle driver who might have been doing nothing beyond being in the wrong place at the wrong time to contribute to a cyclist's fatality.

Perhaps we have reached a moment in urban occupation when licenses, including tests, should be required to traverse a public thoroughfare by any means.

If an iPhone is in airplane mode, is it even a "mobile communication device" at that point?

Interesting article in the NY Times today about how it's also dangerous to walk and text:


(h) "To a person activating or deactivating the mobile communication device OR A FUNCTION OF THE DEVICE."

Isn't dialing a number a function of the device?

Where are the English majors when these laws get crafted? Do they have any?


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