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Operating a Motor Vehicle While Using a Mobile Electronic Device: Driving Infraction or Misdemeanor Offense?

Operating a Motor Vehicle While Using a Mobile Electronic Device: Driving Infraction or Misdemeanor Offense?

In 2017 and again in 2018, the Oregon Legislature updated Oregon’s driving with a cell phone law to more strongly punish drivers who use a cell phone while driving. Under ORS 811.507, Operating Motor Vehicle While Using Mobile Electronic Device, it is illegal to drive a vehicle while holding a mobile electronic device. However, now that the law has been in effect for a few years, some drivers are realizing that there can be serious consequences for a third-time mobile device offender. In this blogpost, we review the mobile device violation statute and what repeat offenders can expect if they get more than three mobile device tickets.

Can I ever use my phone while driving? 

While the favorite lawyer answer is “it depends,” the answer is usually “No.” The general prohibition against using your phone while driving includes (a) driving while texting, (b) driving while holding your phone to your ear, (c) driving while holding your phone on speaker phone, (d) using your phone while waiting in traffic or (e) using your phone while waiting for a stoplight. 

There are some important exceptions to this rule. Drivers may use a “hands-free accessory,” like Apple CarPlay, that “requires only the minimal use of a finger, via a swipe or a tap, to activate or deactivate a function of the device.” ORS 811.507(1)(b). Hands-free accessories include Bluetooth features built in or added to the vehicle that have the purpose of keeping the phone out of your hand. While it is not as certain, using a phone mount and using speakerphone to answer a phone call likely falls under the hands-free accessory exception, but typing a text message into a phone on a car mount would not.

There are also exceptions for commercial motor vehicle drivers (CDL drivers). CDL drivers may use their phones when they are permitted by federal law, specifically 49 U.S.C. 31136 or 49 U.S.C. 31137. There are also exceptions for two-way radio devices for log truck operators, school bus drivers, PGE or other public utility drivers, livestock carriers, ambulance drivers, police officers, firefighters, and pilot or safety car drivers in work zones. Of course, this exception only applies when the drivers are “within the scope of [their] employment.”

The statute also provides for some emergency circumstances, including calling 911 when no other person in the vehicle can make the call, when using a two-way radio to summon medical or other emergency help, or when the person was using a medical device.

There is also a small exception for amateur radio operators with a valid radio operator license under the Federal Communications Commission.

I just got a mobile device ticket, and it’s my first ever mobile device ticket. What can I do?

If you have no other traffic offenses on your record, you will want to determine whether the court offers a traffic diversion program for a mobile device ticket. Many traffic courts do not have a diversion program for a mobile device ticket. There is, however, a special exception to avoid the fine. ORS 811.507(8)(a) allows you to complete a Distracted Driving Course at your own expense, and the court will enter a sentence of discharge with no fine. You would need to complete the program within 120 days of receiving the ticket, and you need to send proof of that class to court. Near the bottom of the first page of the citation, below the officer’s signature, there is information for the court. A call to the court clerk can make the process easier, and they may give you an email address so you can email your Distracted Driving Course proof of completion directly to the court. This distracted driving course is available even if you have other speeding convictions on your driving record.

If you simply want to pay the fine, the mobile device ticket is usually a Class B violation. A Class B violation has a minimum fine of $135, a presumptive fine of $265, and a maximum fine of $1,000. If using the phone contributed to a car accident, then it is a Class A violation, and the fine goes up to a minimum of $225, a presumptive fine of $440, and a maximum fine of $2,000. Of course, if the offense was in a work zone, all presumptive fines double. Most drivers will get the presumptive fine, and if you want that fine reduced you will likely need to speak with the court clerk or the judge. 

I just got another mobile device ticket, and this will be my second conviction in the past 10 years. What can I do?

In this case, your ticket will still be a violation, and it is a Class A violation regardless. You really need to put your phone down while driving because the next conviction is going to cost you. 

I just got yet another mobile device ticket, and this will be my third conviction in the past 10 years. What can I do?

Getting three or more mobile device convictions in Oregon is a Class B misdemeanor. A Class B misdemeanor is a criminal offense, and is punishable by up to 6 months jail and a fine of up to $2,500. There is a mandatory minimum fine of $2,000.00. Going to court on this ticket is mandatory (unlike with most violations) and the judge will usually tell you to that you need a court-appointed attorney or that you need to hire an attorney. Furthermore, depending on your driving record, you could also face a driver’s license restriction or suspension under the DMV Driver Improvement Program. 

Many criminal defense attorneys do not handle these cases because they do not follow the mobile device statute; some criminal defense attorneys will not even schedule a consultation on these tickets. We do. Give our office a call to see how we can help you with your mobile device ticket.