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Oregon recently passed HB 2957 B, which modifies the law regarding using electronic devices while driving. From the text of the law, it appears to ban:

(a) Holds a mobile electronic device in the person’s hand; or

(b) Uses a mobile [communication] electronic device for any purpose.

where "Mobile Electronic Device" is defined as the following:

(c)(A) “Mobile electronic device” means an electronic device that is not permanently installed in a motor vehicle.

It's later said in the bill that:

(4) It is an affirmative defense to a prosecution of a person under this section that the person:

...

[(d)] (b) [Is] Was 18 years of age or older and [is] was using a hands-free accessory;

where "hands-free accessory" is defined as:

[(a)] (b) “Hands-free accessory” means an attachment or built-in feature for or an addition to a mobile [communication] electronic device[, whether or not permanently installed in a motor vehicle,] that when used [allows a person to maintain] gives a person the ability to keep both hands on the steering wheel.

I'm curious about the ramifications this has with using phones as navigation devices specifically. The following are all common ways to use a phone as a GPS:

  1. Holding it in your hand while driving to use it.
  2. Putting the phone in a cupholder and either:
    • Looking at the screen sometimes
    • Listening to it read out directions to you
  3. Using some sort of phone mount to hold your phone, and either looking or listening to the directions.

It's my understanding that 1 is undoubtedly illegal under this, but I'm unsure of the legality of 2 and 3. I'm particularly concerned about the legality of 3 - while it appears to be hands-free accessory, I'm unsure what "an affirmative defense to a prosecution of a person under this section" means. Moving forward, how could someone interested in using a GPS comply with Oregon law?

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An affirmative defense is a way of avoiding conviction by acknowledging you did the act claimed, but that such act was among the exceptions provided by the law which makes such acts otherwise an offence.

That is, you affirm (acknowledge, admit) your action of using the device, but you are claiming that your use of the device (handsfree as a GPS guide) is okay, and therefore you should not be convicted.

For all intents and purposes in this situation, your "2" and "3" are the same thing. The device is supported by something other than you holding it, and you are able to keep both hands on the wheel while using it in this way.

Finally, a plain language reading of the definition for "hands-free accessory" suggests that using an object in the car to support the device where it can be seen, or using a feature of the device that speaks directions which you can hear, neither of which requires moving your hands off the wheel, will be considered such an accessory.

It is also worth pointing out that such usage of a device (placed in a cradle or on the dashboard or turned up so it is heard) will be well-known to the legislators, and there is a reasonable interpretation of the law that would allow such usage.

If this ever went to court, and somebody used this defence for this situation, they would probably be okay.

  • My main wonder here is would someone be pulled over for 2 or 3 in the first place? Additionally, if someone is what sort of proof should they try to collect for the affirmative defense? – Mark Jul 11 '17 at 21:40
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    @Mark Someone would probably not be pulled over for 2 or 3, although might be pulled over for any number of other things (e.g. the more general offense of distracted driving). Usually, the only available proof will be testimony of people with first hand knowledge and possibly a police dash cam. It is very hard to claim the 5th successfully when you need to prove an affirmative defense such as this one. – ohwilleke Jul 11 '17 at 21:50
  • I'd just say that you shouldn't take your eyes away from the street, so looking at your phone in a cup holder is a bad idea. And you could get into trouble for more generic rules, like "driving without due attention" or something like that. – gnasher729 Jul 14 '17 at 9:02
  • Taking your eyes off the street is necessary to look at mirrors, and it's no more than a glance to check for the name of the road one is meant to turn down next. I don't see that a sensible use would be any more distracting or dangerous than stopping to check a map. But then, we're known for having pretty sensible cops. – Nij Jul 14 '17 at 9:59
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This is a situation where the wording of the law is unclear, so "meaning" must be created out of supposed judicial intent, which is always a dangerous enterprise. Relevant case law is State v. Rabanales-Ramos, under a prior version of the law. In that case, the issue arises as to the meaning of "use", and the court says

the context of ORS 811.507(2), including the other provisions of ORS 811.507, suggests that the meaning of the term “uses” in ORS 811.507(2) is limited to use of a mobile communication device for the purpose of voice or text communication. See PGE, 317 Or at 611 (context of a statutory provision includes other provisions of the same statute). First, we note that the definition of “mobile communication device” set forth in ORS 811.507(1) is “a text messaging device or a wireless, two-way communication device designed to receive and transmit voice or text communication.” (Emphases added.) That definition suggests that the activity that the legislature intended to address was using a mobile communication device for voice or text communication. The legislature did not include in its definition of “mobile communication device” a device incapable of receiving and transmitting voice or text communication, such as a hand-held GPS mapping device or music-playing device, which suggests that the legislature did not intend to broadly prohibit the use of any mobile device for any purpose; rather, the legislature intended to address the specific act of communicating, by voice or text, using a mobile communication device. Furthermore, the lack of any reference in the statute to possible functions of a mobile communication device apart from receiving and transmitting voice or text communication, such as playing music or getting directions, suggests that the legislature did not contemplate the application of ORS 811.507 to such functions.

The definitions in the earlier law included:

“(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.

By framing the law in terms of "mobile communications device", it was deemed by the court that the legislature intended the restriction to be about communicative uses.

The recent change in the law clearly expands the scope of the prohibition, with respect to uses, because it now refers to "mobile electronic devices" and explicitly mentions navigation. Then the question is what constitutes a "hands-free device". Regarding the cup-holder option, the question would be whether a cup-holder is "an attachment or built-in feature for or an addition to a mobile electronic device". A plain language analysis would indicate that a cup-holder is not an attachment or built-in feature for an electronic device, nor is it an addition to a mobile electronic device. However, a dash mount would be (though legislative intent may have been more restrictive). To override the plain words of a statute, there must be compelling evidence of a contrary legislative intent.

Additionally, we must assign some meaning to the changed wording "gives a person the ability to keep", as contrasted with allowing to maintain – we have to assume that the legislature meant something, in changing those words. This suggests that the hands-free device has to actively contribute to the ability to keep both hands on the wheel, in the way that a blue tooth device would. Actually holding a cell phone in your hands would also "allow" a person to have both hands on the wheel, but such an action conflicts with the plain meaning of "hands-free". We have to conclude, then, that the legislature did not just mean "as long as both hands are on the wheel".

There is testimonial evidence, from 6-22 (and similar support and opposition during that hearing), that the Senate was aware of the interpretation that the law "will punish drivers who currently make an effort to utilize their mobile electronics in the least-distracting means possible, by mounting them in lieu of an in-dash display", but the bill remain un-amended. We can contrast the fact that nothing was changed in any version of the bill with respect to the phone-qua-GPS issue in light of testimony objecting to restricting such temporary dash-mount use, to the fact that there was also testimony pertaining to limitations on radio communication under the House version of the bill, whereby the amended Senate version and the final version expanded subsection (2) to allow such uses. As this (early) testimony indicates, "if it is not permanently installed, then it is prohibited" (Senator Prozanski in his testimony around 5:30 in confirms the distinction between built-in devices vs. cell phones and the like, in that a built-in device is not a "mobile electronic device", thus not restricted.

In other words, we can conclude that the legislature was aware that the law would restrict use of dash-mount devices as surrogates for built-in GPS (which is allowed), and chose not to change the language of the bill: that such a restriction would not be an unintended consequence. As we know, legislative-intent arguments are often facile, but the court did rely on such facile arguments to reach the earlier conclusion that the law only addressed communicative uses.

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"Taking your eyes off the street is necessary to look at mirrors, and it's no more than a glance to check for the name of the road one is meant to turn down next"

No mirrors in cupholders at all, so no, not the same. Mirrors never require changing one's line of sight almost completely perpendicularly to the road ahead AND drastically downward. Nor do you have reading to do in the middle, all before you can lift eyes and turn head back to the road.

Cavalier attitudes toward safety, even "a glance to check" is why these laws are being passed. In 2002 NHTSA: 66% of 43,000 fatal car crashes due to “adjusting the radio or CD." Approximately 421,000 drivers were injured in accidents due to distracted driving in 2012, and 3,328 innocent drivers were killed by distracted drivers crashing in on or around them.

I'm a fantastic driver. Most people are not even good drivers, but worse, they think they are. That and taking eyes off the road, kills people.

Never, not even in OR, will taking eyes off the road to look in a cupholder or on lap, be an on the books, allowed exception. Verbiage is pretty clear if you legalese much. ' “Hands-free accessory” means an attachment or built-in feature for...' Its the little "for" in that sentence. It means the built in feature must be built-in FOR hands-free device use. Not FOR supersize cups, as a cupholder is FOR.

Cup-holder.

Comply? Umm have a good idea how to get places, stop the car if you need to directions or need to enter route in device, buy a mount if you like, or simply raise the volume and turn when the Lady tells you...most cars dashes will allow u to see the device screen barely reflected in window, if placed flat and face up. Enough to see the street name if needed, keeping eyes up and forward.

  • I'm not sure why there's so much vitriol here - I don't personally use a cupholder, I was just wondering about the legal implications about this bill, and thought there were 4 abstract classes of GPS use: in hand, not in hand and not in a specifically designed aftermarket accessory, in a specifically designed aftermarket accessory, and permanently installed in the car. The last one is clearly legal, and the first one is clearly illegal, the other two are less clear. – Mark Jul 20 '17 at 16:06
  • Especially for the "in cupholder" one using the audio readout, and potentially having the screen off - is using your own phone's speakers legal? If it was piped over the car's speakers (via bluetooth/an AUX cable/etc), it would be. I was wondering the legal distinction between the two, even if I don't personally plan on doing anything besides #3. – Mark Jul 20 '17 at 16:08

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