For other versions of this document, see http://wikileaks.org/wiki/CRS-RL31588 ------------------------------------------------------------------------------ Order Code RL31588 CRS Report for Congress Received through the CRS Web Mobile Telephones and Motor Vehicle Operation Updated September 30, 2004 Douglas Reid Weimer Legislative Attorney American Law Division Congressional Research Service ~ The Library of Congress Mobile Telephones and Motor Vehicle Operation Summary In the United States, as well as worldwide, there has been substantial growth in the use of mobile wireless telecommunication services ("mobile telephones"). The use of mobile telephones by the drivers of motor vehicles has been the subject of certain state and local restrictions. S. 179 (108th Cong., 1st Sess. (2003)) has been introduced in the 108th Congress to provide some federal oversight of mobile telephone use by drivers of motor vehicles, by requiring the individual states to enact legislation to restrict mobile telephone use by drivers of motor vehicles. Noncomplying states would be subject to the loss of federal highway funds. At the present time, eighteen states and the District of Columbia have enacted legislation concerning the use of mobile telephones by drivers of motor vehicles. The existing state laws vary greatly and are summarized in the report. Some state laws expressly preempt local regulation of mobile telephones. As of the date of this report, fifty-three pieces of legislation have been introduced in 2004 in twenty-six states and the District of Columbia concerning the use of mobile telephones by drivers of motor vehicles. The current status of state legislation is summarized state- by-state in the report. Over the years, Congress has repeatedly conditioned the use of federal highway funds to encourage states to enact desired transportation-related legislation. For example, Congress has used this legislative device in dealing with drunk driving. The pending federal legislation making federal highway funding contingent on state restriction on the use of mobile telephones by drivers of motor vehicles would appear to follow the driving while intoxicated legislative models. This report examines the pending federal legislation, pending and enacted state legislation, and the possible effect that the federal legislation, if enacted, might have on the existing state and local regulations. Contents Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Summary of Legislation in the 108th Congress . . . . . . . . . . . . . . . . . . . . . . . 3 Summary of Existing State Laws Concerning the Use of Mobile Telephones . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Legislative Trends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 State Legislative Activity in 2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 District of Columbia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 New Jersey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Other States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Legal Considerations Related to the . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Enactment of Federal Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 List of Tables Table 1. State Laws Concerning the Use of Mobile Telephones . . . . . . . . . . . . . 4 Table 2. 2004 State Legislative Activity Concerning Mobile Telephone Use and Motor Vehicle Operation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Mobile Telephones and Motor Vehicle Operation Background In the United States, as well as worldwide, there has been substantial growth in the number of subscribers to mobile wireless telecommunication services.1 It is reported that there are currently over 169,000,000 mobile telephone2 subscribers in the United States.3 The number of subscribers is increasing each year, and this growth is expected to continue.4 Concurrent with the increase in mobile wireless telecommunication services ("mobile telephones") has been the use of mobile telephones and related accessories by drivers of motor vehicles.5 Opinion is divided regarding the desirability of mobile 1 See CRS Report RS20664, Third Generation ("3G") Mobile Wireless Technologies and Services; and CRS Report RS20993, Wireless Technology and Spectrum Demand: Third Generation (3G) and Beyond. 2 For the purpose of this report, the term "mobile telephone" is used as a generic term for any type of cellular or wireless telephone. 3 Figure reported by the Cellular Telecommunications & Internet Association (CTIA). See [http://www.wow-com.com/]. In 2002, the CTIA had reported that there were 137,000,000 subscribers. This indicates an average growth rate of over 20%, each year, in the past two years. The CTIA updates its usage figures regularly. 4 Id. 5 Technological advances in wireless telecommunications are combining with Internet technology to develop new generations of applications and services. Currently, the United States and other countries are moving toward a third generation of mobile telephony, known as 3G. The dominant feature of 3G technology is that the transmission speeds are significantly faster. See CRS Report RS20993 at 1. A related development is in the use of wireless fidelity technology, known as Wi-Fi. There are wireless networks which provide high-speed access to the Internet. 3G technology can be described as bringing Internet capability to wireless mobile telephones. Wi-Fi provides wireless Internet access for portable computers and handheld devices, such as Personal Digital Assistants. These technological advances have increased the communications technology available in motor vehicles. In addition to making and receiving calls (other features include call forwarding, paging features, Voicemail, and prioritizing of calls), modern mobile telephones can take, send, and receive pictures. Mobile telephones permit users to surf the World Wide Web, check stock quotes or sports scores, play video games, and perform a variety of other functions, in addition to conversation. Modern motor vehicles may include other technological devices such as televisions, navigation systems, fax machines, dvd players, computers, and other devices. It is expected that additional features will be available for (continued...) CRS-2 telephone use by drivers. Arguments have been made that mobile telephone use by a motor vehicle operator is a safety feature for summoning emergency personnel and/or roadside assistance. Others argue that the operator's mobile telephone use is a driver distraction that could lead to hazardous situations and to possible accidents.6 Certain state7 and local jurisdictions8 have enacted and implemented restrictions on the use of mobile telephones by the drivers of motor vehicles. Numerous foreign jurisdictions restrict and/or prohibit mobile telephone use and/or other wireless technology use in motor vehicles.9 Federal legislation has been introduced in the 108th Congress -- "Mobile Telephone Driving Safety Act of 2003" -- which would have the effect of placing some restrictions on the use of mobile telephones by drivers of motor vehicles under certain circumstances.10 This report examines the pending federal legislation concerning mobile telephone use by the drivers of motor vehicles, pending and 5 (...continued) mobile telephones, as well as other entertainment/communication devices for use in motor vehicles. This report is limited to the use of mobile telephones by the drivers of motor vehicles. 6 M. Sundeen, Cell Phones and Highway Safety: 2003 State Legislative Update, (2004) [Report from the National Conference of State Legislatures] at [http://ncsl.org/print/transportation/cellphoneupdate12-03.pdf]. (Cited to afterward as "Sundeen"). 7 State legislative activity is discussed infra. 8 The National Conference of State Legislatures ("NCSL") reports that twenty-five municipalities or counties have passed restrictions on the use of mobile telephones while operating a motor vehicle. See Sundeen at 15-16. These jurisdictions, listed alphabetically by state, are: Miami-Dade County, FL; Pembroke Pines, FL; Westin, FL; Brookline, MA; Bloomfield, NJ; Carteret, NJ; Hazlet, NJ; Irvington, NJ; Marlboro, NJ; Nutley, NJ; Paramus, NJ; Santa Fe, NM; Nassau County, NY; Suffolk County, NY; Westchester County, NY; Brooklyn, OH; North Olmstead, OH; Walton Hills, OH; Conshocken, PA; Lower Chichester, PA: West Conshocken, PA; Lebanon, PA; Hilltown Township, PA; York, PA; and Sandy, UT. In 2001, the NCSL had reported thirteen jurisdictions that restricted mobile telephone use by drivers of motor vehicles, which represents nearly a 50% increase in two years. However, it should be noted that although these jurisdictions may have laws/ordinances which limit or restrict mobile telephone use by drivers of motor vehicles, such restrictions may not be strictly enforced, or may not be enforced at all. 9 The NCSL reports (see Sundeen at 16) that certain restrictions have been placed on mobile telephone use by drivers of motor vehicles in forty-two countries: Australia; Austria: Belgium; Botswana; Brazil; Chile; Czech Republic; Denmark; Egypt; Finland; France; Germany; Greece; Hungary; India; Ireland; Israel; Italy; Japan; Jordan; Kenya; Malaysia; Netherlands; Norway; the Philippines; Poland; Portugal; Romania; Russia; Singapore; Slovak Republic; Slovenia; South Africa; South Korea; Spain; Sweden; Switzerland; Taiwan; Turkey; Turkmenistan; United Kingdom; and Zimbabwe. It is uncertain as to how stringently the restrictions are enforced. It should also be noted that use may be limited by drivers, as well as passengers in motor vehicles. 10 S. 179, 108th Cong., 1st Sess. (2003). CRS-3 enacted state legislation, and the possible effect that the federal legislation, if enacted, might have on the existing state and local laws. Summary of Legislation in the 108th Congress In the 108th Congress, Senator Corzine reintroduced his bill from the 107th Congress11 as the "Mobile Telephone Driving Safety Act of 2003," S. 179,12 on January 16, 2003. On that same day, the bill was referred to the Committee on Environment and Public Works, which was the last action on the bill. Like its predecessor bill, S. 179 would direct the Secretary of Transportation to withhold federal highway funds from any state that permitted an individual to use a mobile telephone while operating a motor vehicle. The bill defines "motor vehicle" to mean a vehicle driven or drawn by mechanical power and manufactured primarily for use on public highways, but does not include a vehicle operated only on a rail. The bill would withhold federal highway funds from the noncomplying states during their period of noncompliance. The Secretary would be required to withhold 5 percent of federal highway funds from noncomplying States for FY2005. In subsequent fiscal years, the Secretary is required 10 percent of federal highway funds from noncomplying states. A state would meet the federal requirements if it has enacted and is enforcing a law that makes it unlawful to use a hand-held mobile telephone by an individual operating a motor vehicle. However, the state may permit an individual operating a motor vehicle to use a mobile telephone with a device that permits hand-free operation of the telephone if the state determines that such use does not pose a threat to public safety. Another exception is permitted in the case of an emergency or other exceptional circumstances, as determined by the state. Federal highway funds withheld from a noncomplying state are to remain available until the end of the fourth fiscal year following the fiscal year for which the funds were authorized to be appropriated. If a noncomplying state complies with federal requirements within the withholding period, withheld funds will be apportioned to it and remain available for expenditure during the following three fiscal years. Any apportioned funds that are not obligated at the end of this period shall be allocated among the states that meet the federal requirements. S. 179 does not address the issue of the use of mobile telephones by public safety personnel, such as police, firefighters, and emergency medical personnel. While the bill provides an exception for "emergency" situation, it is unclear whether regular use of mobile telephones by these public safety personnel would fall within this exception. Similarly, the bill does not provide a specific definition for the term "mobile telephone." Such definition may be left to the states, but it is possible that such a definition might be interpreted to include other wireless technology. Also, 11 S. 927, 107th Cong., 1st Sess. (2001). 12 108th Cong., 1st Sess. CRS-4 there is no specific definition for the concept of a "hands-free" device. Another issue may be that a headset type feature that covers both ears may prevent the driver from hearing the approach of emergency vehicles and other traffic-related sounds. Some states have laws which prohibit the use of two-earphone devices, whether in use for mobile telephones or for other audio uses. The bill does not address the issue of mobile telephone use by other passengers in the motor vehicle, other than the driver. Summary of Existing State Laws Concerning the Use of Mobile Telephones At the present time, eighteen states and the District of Columbia have enacted legislation concerning the use of mobile telephones by drivers of motor vehicles. The scope and nature of these laws vary greatly. In 2001, New York became the first state to prohibit drivers from talking on hand-held mobile telephones while operating a motor vehicle.13 California law requires that rental cars with mobile telephone equipment must include written operating instructions for the safe use of the mobile phone. Another recently enacted California law prohibits the operation of a school or a transit bus while using a mobile telephone. Florida and Illinois permit mobile telephone use, as long as the device does not impair sound to both ears of the driver. Arizona and Massachusetts prohibit school bus drivers from using cell phones while operating a school bus. Massachusetts law requires that all drivers have at least one hand on the steering wheel at all times while using a mobile telephone. The various state laws concerning mobile telephone use by drivers of motor vehicles are summarized in the following table:14 Table 1. State Laws Concerning the Use of Mobile Telephones State Rule or Statute Summary Penalties Arizona Ariz.Admin, Code, A school bus driver No penalty Title 17 Chap. 6, may not wear an specified. Art. 1 R17-9-104 audio headset or (2002). earphones or use a mobile telephone when the school bus is in motion. Arkansas Ark. Code Ann. Prohibits the driver Unclassified § 6-19-120 (2003). use of a mobile misdemeanor. telephone while Fine of $100 - operating a school $250. bus. 13 N.Y. Veh. & Traf. Code § 1225-c (McKinney 2002).. 14 Table prepared from information derived from Sundeen at 3. CRS-5 State Rule or Statute Summary Penalties California Cal. Veh. Code Rental cars with $100 maximum for § 28090 (West mobile telephone first violation; 2001). equipment must $200 maximum for include written second; $250 for operating third and instructions subsequent concerning its safe violations use. committed within one year. A.B. (Assembly Makes it an Driving infraction. bill) 2785 (CA infraction to drive 2004), signed by a school bus or the Governor on transit vehicle September 14, while using a 2004. To be wireless telephone. codified as Chapter Contains No. 505. exceptions. Delaware H.Con.Res. 30 Established a task Not applicable. (2002)(apparently force to study and not codified). make findings and recommendations regarding driver distractions, including mobile telephone use. H.B. 379 (DE Clarifies that No applicable 2004); Chap. No. school bus drivers (amendment to 274 (June 24, can use a radio or existing law). 2004). electronic device to make or receive calls for assistance. S. B. 174 (DE Prohibits the use of $50 to $100 fine 2004); Chap. No. a mobile telephone for first offense. 318 (July 6, 2004). while operating a $100 to $100 fine school bus. and six month bus driving suspension for subsequent offenses. CRS-6 State Rule or Statute Summary Penalties District of D.C. Code §§ 50- Mobile telephone Fine of $100; Columbia 2151 to 2157 use is prohibited by provided that the (2004). a driver of a motor fine shall be vehicle, unless suspended for a equipped with a first time violator hands-free who, subsequent to accessory. the violation but Exceptions for prior to the emergency imposition of a situations and law fine, provides enforcement and proof of emergency acquisition of a personnel. hands-free accessory of the Total prohibition required type. of mobile telephone use by Violation is to be drivers of a moving treated as a moving school bus carrying violation. passengers; and a person holding a learner's permit. Florida Fla. Stat. Ann. Mobile telephone $30 for each § 316.304 (West use is permitted violation; non- 2001). only if it provides moving violation. sound through one ear and allows surrounding sound to be heard with the other ear. Illinois 625 Ill. Comp. Stat. A single-sided No penalty. 5/12-610 (2003). headset or earpiece is permitted with a mobile telephone while driving. 625 Ill. Comp. Stat. 5/12-813.1 (2003). Drivers of school Petty offense; buses prohibited punishable by a from using a $110 to $250 fine. mobile telephone while driving; emergency exceptions. CRS-7 State Rule or Statute Summary Penalties Kentucky Ky. Rev. Stat. Ann. Prohibits local Not applicable. § 65.873 (2003). governments from restricting mobile telephone use by drivers of motor vehicles. Louisiana La. Rev. Stat. Ann. Local jurisdictions Not applicable. § 33:31 (West prohibited from 2004). regulating mobile telephone use by drivers of motor vehicles. Maine Me. Rev. Stat. Persons who have "Traffic Ann. tit. 29-A been issued a infraction." M.R.S. §§ 1304, learners permit 1311 (West 2003). may not operate a motor vehicle while operating a mobile telephone. Provides a License restrictions restricted license may be extended for those under age for periods of time 18; such persons (180 days). may not operate a motor vehicle while using a mobile telephone. CRS-8 State Rule or Statute Summary Penalties Massachusetts Mass. Gen. Laws Mobile telephone $35 maximum for Ann. ch. 90, § 13 use is permitted as first violation; $35 (West 2004). long as it does not to $75 for second interfere with the violation; $75 to operation of the $150 for third and vehicle and one subsequent hand remains on violations the steering wheel committed within at all times. one year. Mass. Gen. Laws No person shall No penalty Ann. ch. 90, § 7B operate a moving specified. (West 2004). school bus while using a mobile telephone. Emergency exception. Mississippi Miss. Code Ann. Local jurisdictions Not applicable. § 63-3-212 (2004). are prohibited from enacting ordinances restricting mobile telephone use in motor vehicles. Nevada Nev. Rev. Stat. Local jurisdictions Not applicable. Ann. § 707.375 are prohibited from (Michie 2004). regulating use of mobile telephones by drivers of motor vehicles. CRS-9 State Rule or Statute Summary Penalties New Jersey N.J. Stat. Ann. Use of a hands-free Not less than $100 § 39:4-97.3 (West mobile telephone and not more than 2004). by the operator of a $250. moving motor vehicle is permitted only if "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." N.J. Stat. Ann. § Drivers of school Not less than $250 39:3B-25 (West buses are or more than $500. 2004) prohibited from using mobile telephones, except: 1) when the bus is parked in a safe area off highway; or 2) in an emergency situation. New York N.Y. Veh. & Traf. Drivers are Not more than Code § 1225-c prohibited from $100. (McKinney 2002). talking on hand- held mobile telephones while operating motor vehicles. Oklahoma H.B. 1081 (2001) Prohibits local Not applicable. (apparently not jurisdictions from codified). restricting use of mobile telephones by drivers of motor vehicles. CRS-10 State Rule or Statute Summary Penalties Oregon Or. Rev. State. A city, county or Not applicable. § 801.038 (2003). other local government may not enact or enforce any charter provision, ordinance, resolution or other provision regulating the use of mobile telephones in motor vehicles. Rhode Island R.I. Gen. Laws The use of a $50 fine. § 31-22-11.8 mobile telephone (2004). by a school bus driver is prohibited while the bus is transporting children, except in the case of an emergency. Tennessee Tenn. Code Ann. School bus driver Class C § 5508-192 (2004). prohibited from misdemeanor. using a hand held Fine of $50. mobile telephone while such a vehicle is in motion and is transporting children. Exception for mobile telephone or two-way radio communications made to and from a central dispatch, a school transportation department, or a similar office. CRS-11 Legislative Trends States continue to consider and enact legislation concerning the use of mobile telephones by the drivers of motor vehicles. The NCSL determined that, in 2003 alone, legislators in forty-one states and the District of Columbia considered one hundred sixteen bills concerning mobile telephone use or related distracted driving issues.15 However, most of these bills were not passed.16 To date, no state has outright banned all use of any mobile telephone device while driving. However, there has been a trend toward at least considering a prohibition on the driver use of hand-held telephones. For example, New York, prohibits the use of hand-held telephones while driving except during emergency situations; however, the New York law permits the driver to use hands-free mobile telephone devices. Forty-eight bills which were introduced in thirty-three states considered similar legislation to implement hands-free mobile telephone requirements. None of these bills were enacted into law in 2003, although two such bills have been enacted and implemented in 2004, which are discussed below. Several states have begun to focus on mobile telephone use by young drivers. Many proposals would restrict use based on age/or type of permit. In 2003, Maine enacted a law to restrict mobile telephone use by drivers under the age of twenty-one who have a learner's permit or a restricted drivers license. Currently, several states prohibit the drivers of school buses from using mobile telephones while operating a school bus. In 2003, legislatures in six states proposed bills which would implement such restrictions. Arkansas and Tennessee enacted such laws in 2003. A growing trend is to require the collection of crash data information. Several states currently require law enforcement officers to collect information concerning any connection between mobile telephone use and a motor vehicle crash. Other states have enacted legislation which requires the conduct of studies of the effects of mobile telephone use on traffic safety. Another legislative theme is for the states to assert authority over the jurisdiction of mobile telephone use and to restrict local mobile telephone use laws. Several states -- Kentucky, Louisiana, and Nevada among them -- have laws that prohibit local restriction or regulation of mobile telephone use by drivers of motor vehicles. Certain proposals would place special requirements on the use of mobile telephone use by the drivers of motor vehicles. Such requirements may involve the use of special headsets or hands-free equipment. For example, California in 2001 enacted legislation that required rental cars equipped with mobile telephone equipment must be furnished with written instructions for the safe use of such equipment. 15 Sundeen at 4-11. 16 Id. CRS-12 States have considered other distracted driving legislation concerning distractions to the operator of a motor vehicle. In 2003, Louisiana enacted legislation that prohibited driving a motor vehicle equipped with a televisions capable of receiving any pre-recorded visual presentation, unless the device is behind the driver's seat or is not visible by the driver. The state legislatures of six states considered measures that would have increased driver responsibility for the involvement in a crash will the driver was using a mobile telephone. None of these bills was enacted. State Legislative Activity in 2004 In 2004, three jurisdictions enacted legislation concerning the use of mobile telephones by the drivers of motor vehicles: the District of Columbia, New Jersey, and Delaware. The District and New Jersey laws are summarized. District of Columbia. On January 4, 2004, the District of Columbia City Council approved hands-held restrictions on mobile telephone use by motor vehicle operators as part of the Distracted Driving Safety Act of 2004 ("Act"),17 an act that also set other standards for "distracted driving." Beginning on July 1, 2004, it became illegal for drivers to use a mobile telephone or other electronic device while driving in the District of Columbia, unless the telephone or device is equipped with a hands-free accessory. The act is designed to improve traffic safety in the District of Columbia by reducing the number of crashes caused by inattentive drivers who become distracted by the use of phones or other electronic devices.18 The District police department began issuing warnings on July 1, 2004, and actual ticketing began on August 1, 2004. The statute specifically states that no one "shall use a mobile telephone or other electronic device while operating a moving vehicle in the District of Columbia, unless the telephone or device is equipped with a hands-free accessory."19 Exceptions to the prohibition is made for: 1) emergency use of a mobile telephone, including calls to 911 or 311, a hospital, an ambulance service provider, a fire department, a law enforcement agency, or a first-aid squad; 2) use by law enforcement and emergency personnel or by a driver of an authorized emergency vehicle, acting within the scope of official duties; or initiating or terminating a 17 D.C. Law 15-311 (effective Mar. 30, 2004); codified at D.C. Code §§ 50-2151 to 2157 (2004). 18 The D.C. Metropolitan District of Columbia Police Department website contains a comprehensive summary of the act. See [http://mpdc.gov/info/traffic/distracteddriver.shtm]. 19 Id. § 50-2153(a). CRS-13 telephone call, or turning the telephone on or off.20 The driver of a school bus is specifically prohibited from using a mobile telephone, except in cases or emergency or under certain very specific cases.21 A person holding a learner's permit is prohibited from using any mobile telephone or other device, including those with hands-free accessories, while operating a moving vehicle on a public highway, except in an emergency.22 No age restriction or limitation specified within the context of the learner's permit. The statute requires that following a motor vehicle accident, the police officer's report must include whether a mobile telephone was present in a vehicle; whether the use of such telephone contributed to the cause of the accident; and whether any other distraction contributed to the cause of the accident.23 The Director of the District Department of Transportation is required to annually publish and submit to the City Council a report containing statistics concerning the possible relationship between motor vehicle accidents in the District of Columbia and the use of mobile telephones or other electronic devices by motor vehicle operators.24 The Mayor is also required to submit a report to the City Council containing recommendations concerning mobile telephone use in motor vehicles.25 The statute provides penalty provisions. A fine of $100 is to be imposed for violation of the statutory requirements. However, the fine shall be suspended for a first time violator who, subsequent to the violation but prior to the imposition of the fine, provides proof of a hands-free accessory of the type required by the law.26 New Jersey. The New Jersey statute was enacted into law on January 20, 2004, and is more limited in scope than the District of Columbia law. The statute provides that the use of a wireless telephone by the operator of a moving motor vehicle on a public road or highway shall be unlawful, except when the telephone is a hands-free wireless telephone, 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.27 An exception is allowed to use a hand-held telephone if: the driver has reason to fear for his life or safety, or believes that a criminal act may be perpetrated against himself or another person; or the operator is using the telephone to report a fire, traffic accident, hazard, or other 20 Id. § 50-2153(b). 21 Id. § 50-2154(a). 22 Id. § 50-2154(b). 23 Id. § 50-2156(a). 24 Id. § 50-2158(a). 25 Id. § 50-2158(b). 26 Id. § 50-2155(a). 27 N.J. Stat. Ann. § 39:4-97.3(a) (West 2004). CRS-14 dangerous condition. The penalty for the violation of the New Jersey statute is a fine of not less than $100, and not more than $250.28 Other States. In 2004, various states have continued their efforts to regulate the use of mobile telephones by the drivers of motor vehicles. Delaware29 enacted two laws relating to the use of radios or electronic devices by the drivers of school buses30 and prohibiting the use of mobile telephones while operating a school bus.31 Pending state legislation is summarized in the following table. Table 2. 2004 State Legislative Activity Concerning Mobile Telephone Use and Motor Vehicle Operation State Bill Number Bill Summary and Status of State Penalties Activity Alabama H.B. 117 (AL Prohibits the use of Referred to the 2004). hand-held mobile House Public telephones while Safety Committee driving. Headsets (February 3, 2004). can only allow sound to one ear. Fines of up to $50. 28 Id. § 39:4-97.3(d). 29 See references on chart of state legislative activity in 2004. 30 H.B. 379 (DE 2004) to be codified at Del. Code Ann. Ch. 274. 31 S.B. 174 (DE 2004) to be codified at Del. Code Ann. Ch. 318. CRS-15 State Bill Number Bill Summary and Status of State Penalties Activity Arizona H.B. 2691 (AZ Prohibits the use of Referred to the 2004). hand-held House Rules telephones while Committee driving. (February 16, Exceptions 2004). provided for emergency situations. Violations have fines of $50. If driver involved in an accident, fine may be $200. Law enforcement required to collect information about mobile telephone use on crash report forms. California A.B. (Assembly Prohibits the use of Referred to the bill) 1828 (CA a hand-held mobile Assembly 2004). telephone while Transportation operating a motor Committee. Not vehicle. heard (April 19, Exceptions for 2004). emergency situations. Convictions for a first offense are punishable by a $20 fine. Subsequent offenses are punishable for a $50 fine. A.B. (Assembly Prohibits operating Signed by the bill) 2785 (CA a school bus or a Governor on 2004). Enacted. transit bus while September 14, using a mobile 2004. To be telephone. codified at Chapter No. 505. S.B. 1320 (CA Prohibits the use of Referred to the 2004). a mobile telephone Senate while driving in a Transportation school zone. Committee (April 20, 2004). CRS-16 State Bill Number Bill Summary and Status of State Penalties Activity Colorado H.B. 1173 (CO Makes it a Passed House and 2004). secondary traffic referred to the offense for a Senate Committee holder of a on Transportation. temporary Postponed instruction permit indefinitely (March or a minor's 3, 2004). instruction permit to drive while using a mobile telephone or other mobile communication device (other than a hands-free device). Provides exemptions and penalty assessments. Connecticut H.B. 5553 (CT Prohibits the use of Referred to the 2004). hand-held Joint Judiciary telephones while Committee. Failed driving. Prohibits joint favorable drivers from using deadline (March a mobile electronic 22, 2004). device to perform any personal computer function, sending or receiving any electronic mail, playing any video game or digital video disk, or taking or transmitting any digital photograph while operating a motor vehicle. Fines range from $75 for a first violation, to $150 for a second violation, to $250 for a third and subsequent violation. Delaware H.B. 224 (DE Prohibits the use of Reported out of the 2004). hand-held mobile Public Safety telephones while Committee without CRS-17 State Bill Number Bill Summary and Status of State Penalties Activity Delaware (cont.) operating a motor recommendation vehicle and makes (June 11, 2004). it a secondary offense. Contains emergency exceptions. Requires schools to place inattentive driving on the school curriculum. Prohibits use of a mobile telephone while operating a school bus. Preempts local jurisdictions from enacting restrictions on the use of mobile telephones while driving. Requires sellers of mobile telephones to educate customers about improper use of the telephone while driving. Requires the Dept. of Public Safety to collect crash statistics related to mobile telephone use while driving. H.B. 379 (DE Clarifies that Signed by the 2004). school bus drivers Governor and can use a radio or became Chapter electronic device to No. 274 (June 24, make or receive 2004). calls for assistance. S.B. 174 (DE Prohibits the use of Signed by the 2004). a mobile telephone Governor and while operating a became Chapter school bus. No. 318 (July 6, Penalties provided. 2004). S.B. 244 (DE Prohibits drivers Passed Senate. 2004). with only a Referred to House learner's permit Public Safety from using a Committee. Laid CRS-18 State Bill Number Bill Summary and Status of State Penalties Activity Delaware (cont.) mobile telephone. on table (June 1, 2004). District of B15-0035 (DC Prohibits the use of Enacted on January Columbia (See 2004). hand-held 6, 2004. discussion above). telephones while driving. Provides exceptions for emergency situations. Violators may be punished with fines of $100. Requires police to collect information on crash reports about mobile telephone use. Requires the Department of Motor Vehicles to publish crash statistics concerning the relationship between mobile telephone use and motor vehicle crashes. Georgia H.B. 1241 (GA Prohibits restricted Referred to the 2004). drivers (Class D) House Motor from using mobile Vehicles telephones while Committee operating a motor (January 29, 2004). vehicle. Illinois H.B. 5020 (IL Provides that a Tabled by sponsor 2004). person who holds (March 25, 2004). an instruction permit, or a person who has held a driver's license for less than one year, may not use a mobile telephone while driving a vehicle. Provides that a person who is not subject to those prohibitions may use a mobile CRS-19 State Bill Number Bill Summary and Status of State Penalties Activity Illinois (cont.) telephone while driving if he or she obeys all traffic laws. Provides that if a person permitted to use a wireless telephone commits a traffic violation while using a wireless telephone, he or she, in addition to other violations, is guilty of a petty offense punishable by a fine of not more than $79. Provides that a violation of the provision or a similar provision of a local ordinance is an offense against laws or ordinances regarding the movement of traffic. Contains emergency exceptions. H.B. 6568 (IL Provides that a Referred to the 2004). person under age House Rules 19 may not use a Committee mobile or other (February 6, 2004). telephone while driving. Contains emergency exceptions. Violation is a petty offense punishable by a fine of $100. H.B. 6636 (IL Makes it a petty Referred to the 2004). offense to drive a House Rules motor vehicle Committee while using a (February 9, 2004). mobile telephone, unless that telephone is designed for hands- CRS-20 State Bill Number Bill Summary and Status of State Penalties Activity Illinois (cont.) free operation and is used in that manner while driving. Fine of not more than $20 for a first offense and not more than $50 for each subsequent offense. Contains emergency exceptions. S.B. 2575 (IL Provides that a Referred to the 2004). person who holds House Rules an instruction Committee permit or a (February 4, 2004). graduated license may not use a mobile telephone while driving. Contains emergency exceptions. Indiana S.B. 131 (IN Makes it a Class B Referred to the 2004). infraction with a Committee on fine of $1,000 to Criminal and Civil operate a motor and Public Policy vehicle and (January 6, 2004). simultaneously use a mobile telephone, except in emergencies. Authorizes a person who views the operation of a vehicle with simultaneous mobile telephone use and driving on certain highways to report the incident to the state police or sheriff. Requires the state police or sheriff to issue a notice to the registered owner of the motor vehicle. CRS-21 State Bill Number Bill Summary and Status of State Penalties Activity Iowa H.B. 2158 (IA Prohibits the use of Referred to the 2004). a hand-held mobile House telephone while Transportation driving. There is a Committee $25 fine upon (February 4, 2004). conviction. Kentucky H.B. 602 (KY Prohibits the use of Referred to House 2004). hand-held mobile Transportation telephones while Committee operating a motor (February 26, vehicle. Requires 2004). the Department of Transportation to study the effects of the use of mobile telephones and similar equipment and driver distraction on traffic safety. Department must submit a report to the Governor and the legislature in four years. Pre- empts local laws. Maryland H.B. 1151 (MD Prohibits minors Reported 2004). under the age of 18 unfavorably from from using any the House mobile telephone Committee on while driving. Environmental Excepts Matters (March 15, emergencies. 2004). Authorizes a maximum fine of $500 for violations. H.B. 1152 (MD Prohibits drivers Reported 2004). from engaging in unfavorably from distracting activity House including use of a Environmental mobile telephone Matters Committee or other electronic (March 22, 2004). device. Excepts hands-free devices. Excepts emergencies. Requires information in accident reports. CRS-22 State Bill Number Bill Summary and Status of State Penalties Activity Maryland (cont.) Requires report to the legislature regarding mobile phone use and auto crashes. H.B. 189 (MD Prohibits holders Reported 2004). of learner's unfavorably from instructional the House permits or Committee on provisional driver's Environmental licenses from using Matters (March 1, specific interactive 2004). wireless communication devices while operating a motor vehicle. Excepts emergencies. H.B. 275 (MD Provides that Referred to House 2004). evidence of a Judiciary motor vehicle Committee. driver's operation Reported of a hand-held unfavorably telephone may be (March 15, 2004). considered by the trier of fact in determining whether the driver was negligent under specified circumstances. Makes specific exceptions. H.B. 29 (MD Prohibits hand-held Environmental 2004). telephone use Matters Committee while driving. reported Makes specific unfavorably exceptions. (February 13, Requires that a 2004). violation be enforced only as a secondary action. Violation of the statute may not be classified as a moving violation for assessing CRS-23 State Bill Number Bill Summary and Status of State Penalties Activity Maryland (cont.) points. H.B. 5 (MD 2004). Requires the Motor Reported Vehicle unfavorably from Administration to the House impose a Committee on restriction on Environmental learners' Matters (March 15, instructional 2004). permits and provisional drivers' licenses that prohibits permit holders or licensees from using a specified wireless communication device while operating a motor vehicle. Makes specified exceptions. S.B. 630 (MD Prohibits minors Referred to the 2004). from using a Senate Judicial mobile telephone Proceedings while driving. Committee. Reported unfavorably (March 1, 2004). Michigan H.B. 5084 (MI Prohibits an Referred to the 2003). individual under18 Committee on years of age who is Transportation driving on a permit (September 25, or in graduated 2003). licensing status from using a hand- held mobile telephone while operating a motor vehicle. H.B. 5085 (MI Prohibits the use of Referred to the 2003). a mobile telephone Committee on while driving. Transportation (September 25, 2003). CRS-24 State Bill Number Bill Summary and Status of State Penalties Activity Minnesota H.B. 2712 (MN Prohibits operation Referred to the 2004). of a mobile Committee on telephone in a Transportation moving motor Policy (March 3, vehicle by the 2004). holder of a provisional driver's license or instruction permit. S.B. 2805 (MN Prohibits operation Referred to the 2004). of a mobile Senate Committee telephone in a on Finance (April moving motor 26, 2004). vehicle by the holder of a provisional driver's license or instruction permit. Nebraska L.B. 1111 (NE Makes changes Referred to 2004). regarding holders Legislative of provisional Committee on operator's permits; Transportation and prohibits certain Telecommunica- forms of mobile tions. Hearing telephone use; sets notice (February forth penalty 10, 2004). provisions. CRS-25 State Bill Number Bill Summary and Status of State Penalties Activity New Jersey A.B.(Assembly Requires driver Introduced and bill) 3159 (NJ distraction filed (June 24, 2004). (including mobile 2004). telephone use) to be noted in traffic accident reports. A.B. (Assembly Prohibits the use of Referred to the bill) 664; 965 (NJ mobile telephones Assembly 2004). while driving. Transportation Committee (January 13, 2004). (See discussion S.B. 338 (NJ Prohibits the use of Enacted January above.) 2004). a mobile telephone 20, 2004. while operating a motor vehicle. Permits hands-free devices. Requires the DMV to collect data on crash report forms. New York A.B. (Assembly Provides that Referred to the bill) 3675 (NY drivers who, while Assembly Codes 2004). using a mobile Committee telephone, cause (February 10, accidents which 2004). result in serious injury or death shall be subject to the same criminal penalties as drivers who cause serious injury or death while driving under the influence of alcohol or drugs. Imposes a penalty of two points against a person's license when convicted of a violation of driving while using a mobile telephone. CRS-26 State Bill Number Bill Summary and Status of State Penalties Activity New York (cont.) A.B. (Assembly Requires that Referred to the bill) 4114 (NY police motor Assembly 2004). vehicle crash Transportation reports include Committee information about (January 7, 2004). whether mobile telephones were present in the vehicles and whether the mobile telephones were a contributing factor to the crash. A.B. (Assembly Prohibits drivers Referred to the bill) 5689 (NY under the age of 18 Assembly 2004). from using a Transportation hands-free mobile Committee (March telephone while 3, 2004). operating a motor vehicle. A.B. 6379 Prohibits drivers Referred to the (Assembly Bill) from using hands- Assembly 6379 (NY 2004). free mobile Transportation telephones while Committee (March operating a motor 4, 2004). vehicle. S.B. 3521 (NY Amends existing Amended in the 2004). law so that drivers Senate receive one point Transportation on their driving Committee records if they are (January 23, 2004). convicted of using a mobile telephone while operating a motor vehicle. CRS-27 State Bill Number Bill Summary and Status of State Penalties Activity Rhode Island H.B.7065 (RI Prohibits the use of Referred to the 2004). hand-held mobile House telephones while Corporations driving a motor Committee vehicle or a (January 8, 2004). bicycle. Fines are $35 for a first offense; $70 for a second offense; and $140 for a third or subsequent offense. H.B. 7107 (RI Prohibits minors, Referred to the 2004). persons under the House Judiciary age of 18, from Committee using a mobile (January 8, 2004). telephone either while operating a motor vehicle or as a passenger. $50 fine. South Carolina H.R. 4412 (SC Provides that a Referred to the 2003). person who Committee on possesses a Education and beginner's permit Public Works may not operate a (January 13, 2004). motor vehicle while using a mobile telephone or other wireless communications device. H.R. 4703 (SC Prohibits the use of Referred to the 2004). hand-held House Judiciary telephones while Committee operating a motor (February 4, 2004). vehicle. Convictions for violations are punishable by a fine of $50 and for imprisonment of not more than 10 days. CRS-28 State Bill Number Bill Summary and Status of State Penalties Activity South Dakota S.B. 126 (SD Requires the DMV Tabled in Senate 2004). to collect Transportation information about Committee mobile telephone (January 29, 2004). involvement in motor vehicle crashes. Requires the Department of Public Safety and the Division of Insurance to evaluate whether the use or nonuse of mobile telephones by motorists should be a factor in insurance premiums, tort liability, and safety instructions. S.B. 136 (SD No person with a Deferred 2004). restricted minor's legislative action permit may operate (January 29, 2004). a motor vehicle while using a mobile telephone or other wireless telecommunication device. Emergency exception. The term, for the purpose of the statute, means the talking, listening, or placing or receiving a call on any mobile telephone or other wireless telecommunication device, or operating its keys, buttons, or other controls. CRS-29 State Bill Number Bill Summary and Status of State Penalties Activity Tennessee H.B. 3306 (TN Prohibits the Referred to the 2004). drivers of trucks House with gross vehicle Transportation rating over 16,000 Committee pounds from using (February 12, a hand-held 2004). telephone while driving. $50 fine. S.B. 2293 (TN Prohibits drivers Passed Senate 2004). with a learner's (March 30, 2004). permit, an intermediate license, or a restricted license from using a mobile telephone while driving. $50 fine. Utah H.B. 190 (UT Prohibits school Amended 2003). bus drivers from (February 4, 2004). using a mobile telephone while driving a school bus. Exceptions: medical emergency, safety hazard, or criminal activity. Vermont H.B. 575 (VT Prohibits the use of Referred to the 2004). hand-held mobile House telephones while Transportation driving. Committee (January 14, 2004). S.B. 199 (VT Prohibits the use of Referred to the 2004). hand-held mobile Senate telephones while Transportation operating a motor Committee vehicle. (January 6, 2004). Emergency exceptions. Virginia S.B. 581 (VA Prohibits the use of Passed by 2004). hand-held mobile indefinitely by the telephones while Senate operating a motor Transportation vehicle. $100 fine. Committee (January 22, 2004). CRS-30 State Bill Number Bill Summary and Status of State Penalties Activity Wyoming H.B. 76 (WY Prohibits the use of Introduced 2004). a mobile telephone (February 9, 2004). (cellular or satellite) while operating a motor vehicle. Legal Considerations Related to the Enactment of Federal Legislation Over the years, Congress has repeatedly conditioned the use of federal highway funds to encourage states to enact desired transportation-related legislation. For example, Congress has used this legislative device in dealing with various issues related to the issue of driving while intoxicated. The Highway Safety Amendments of 1984 effectively established the national minimum drinking age by providing that Congress would withhold 5 percent (increasing to 10 percent) of federal highway funds for a state's failure to enact a minimum drinking age of twenty-one.32 Similarly, other federal legislation has been enacted that conditions the receipt of federal highway funds on state adoption of federal standards governing the revocation or suspension of drivers' licenses of individuals convicted of drug offenses;33 the operation of motor vehicles by intoxicated minors;34 and the establishment of minimum penalties for repeat offenders for driving while intoxicated or driving under the influence.35 The pending federal legislation making federal highway funding contingent on state restriction on the use of mobile telephones by drivers of motor vehicles would appear to follow these legislative models. As the Supreme Court has stated: "Congress has frequently employed the Spending Power to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives. The Court has repeatedly upheld against constitutional challenge the use of this legislative device to induce governments and private parties to cooperate voluntarily with federal policy."36 Various criteria concerning Congress' discretion have been provided by the Court. The conditions placed upon the receipt of funds, like the spending itself, must advance the general welfare, but the decision of that 32 23 U.S.C. § 158. 33 23 U.S.C. § 159. 34 23 U.S.C. §161. 35 23 U.S.C. § 164. 36 Fullilove v. Klutznick, 448 U.S. 448, 474 (1980)(Chief Justice Burger announcing judgment of the Court). CRS-31 rests largely, if not wholly, with Congress.37 Since the states may choose to receive or not to receive the proffered federal funds, Congress must set out the conditions unambiguously, so that the states may rationally decide.38 The Court has suggested that the conditions must be related to the federal interest for which the funds are expended.39 Furthermore, the power to condition funds may not be used to induce the states to engage in activities that would be unconstitutional.40 If the state accepts the federal funds on conditions, and then does not follow the prescribed federal requirements, the typical remedy is federal administrative action to terminate the funding and to recoup funds that the state has already received.41 It has also been determined that under certain circumstances the recipients and the potential recipients in a particular program may sue to compel states to observe the standards.42 Conclusion Along with the substantial growth in mobile telephone use has been concern about the use of mobile telephones by the drivers of motor vehicles. At the present time, a variety of state laws and local ordinances provide some regulation of mobile telephone use. In addition, a number of states are considering legislation to regulate mobile telephone use by drivers of motor vehicles. Federal legislation has been introduced in the 108th Congress which would effectively require individual states to enact legislation to restrict mobile telephone use by drivers of motor vehicles. Noncomplying states would be subject to the loss of federal highway funds. The legislation appears similar to existing legislative precedent directing states to enact certain legislation or be subject to the loss of federal highway funds. 37 South Dakota v. Dole, 480 U.S. 203, 207 (the placing of conditions on the receipt of federal highway funds)(1987). 38 Id.. 39 Id. 40 Id. at 210-211. 41 Bell v. New Jersey, 461 U.S. 773 (1983); Bennett v. New Jersey, 470 U.S. 632 (1985); Bennett v. Kentucky Dept. of Education, 470 U.S. 656 (1985). 42 King v. Smith, 392 U.S. 309 (1968). ------------------------------------------------------------------------------ For other versions of this document, see http://wikileaks.org/wiki/CRS-RL31588