I was stopped for holding my phone while driving; I was listening to a podcast on speaker, and the phone was locked.

In 625 ILCS 5/12-610.2, subsection (b) says

A person may not operate a motor vehicle on a roadway while using an electronic communication device.

Prior to this amendment, this subsection was less vague:

A person may not operate a motor vehicle on a roadway while using an electronic communication device to compose, send, or read an electronic message.

  • Was I in violation of Illinois' "hands-free phone" law?
  • What constitutes use in this context?
  • How could the prosecutor prove I was actually using, and not just holding, a phone? (I wasn't fined; this is a hypothetical question)

What a statute means can be difficult to determine.

There are several approaches to statutory interpretation that could be helpful:

  • Textual: The plain meaning doesn't confine "use" to a few particular types of uses. The plain text provides an expansive prohibition on any use of an electronic communication device.
  • Legislative history/legislative intent:
    • The previous version of the subsection did limit prohibited uses to only composing, sending, or reading electronic messages. Given the amendment, it seems that the legislature no longer desired that limitation.
    • When the bill was introduced, Rep. D'Amico stated the purpose of the bill was to "[expand] the prohibition on driving while using an electronic communication device to include uses beyond composing, sending, or reading an electronic message."
    • During debate, when asked what a person should do that doesn't have Bluetooth, Rep. D'Amico suggested "You put it on speaker phone". When asked, "Where would you place the phone?", Rep D'Amico replied, "Wherever you feel like; just not next to your ear."
    • During the same debate, D'Amico described the bill: "What House Bill 1247 does is ban handheld cell phones while driving a vehicle."
    • In my opinion, the declaration of the bill's sponsor, and the debate surrounding the bill treated it as expanding the prohibition from including only texting and email to also include voice conversations.

As far as I can tell, the full scope of "using" under this statute hasn't been tested in court, but I could see this going either way. The plain text provides an expansive prohibition on any use of an electronic communication device. However, a court might also be convinced by the legislative intent that only aims to add handheld voice communications to the previous list of prohibited activities (or it least it could be argued that this is the case).

Further, under a purposive construction, a court could even look beyond the explicit legislative intent and find that the core purpose was to prevent distraction, in which case "using" could include any activity on your electronic device that distracts you as if you were texting, or making a phone call (eg. selecting the next song to play in your music app).

  • Worth noting that (probably) the use must be as an electronic communications device - if you were using it as e.g. a backscratcher then this would not constitute use (probably ... again) – Dale M Oct 20 '15 at 22:13
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    Practically speaking, you will have the burden of rebutting the presumption that you were using the phone in a way that is prohibited. If you bring a copy of your phone bill and show that you were not texting or talking during the time the ticket was issued, you could probably establish you were using it in a way no different than a radio, and you were not using it to communicate. Without this evidence you'll lose. – gracey209 Oct 20 '15 at 23:15
  • I think the TL;DR here is "Hard to say - ask the judge when you fight your ticket"? – corsiKa Oct 20 '15 at 23:19
  • @nomenagentis What effect do you think subsection 10 has on affirmative defense when it's a phone being 'used'? – A.V. Oct 20 '15 at 23:30
  • @A.V. It excludes "hand-held wireless telephone[s]" from being eligible for the exception. But, it gives "music player" as an explicit example of something that is eligible for the exception. This is some inartful drafting :P Is a smart-phone that has a music app a "hand-held wireless telephone"? Or is it a "music player"? I think in that case the plain meaning is absolutely ambiguous, and the court would likely look to a either a legislative intent or purposive construction, but as I guess in my answer, those approaches might lead to conflicting conclusions. – user248 Oct 20 '15 at 23:39

To add to nomen agentis's answer, in a test of "usage" the court may look to similar hands-free bans in other jurisdictions. For example, consider San Antonio, where the City Council takes care to define usage. In particular, it

finds that the use of a hand-held mobile communication device to
1. engage in a call,
2. send, read, or write a text message,
3. view pictures or written text, whether transmitted by internet or other electronic means,
4. engage in gaming, or
5. engaging in any other use of the device while operating a moving motor vehicle is a traffic hazard and a danger to the public

As to proof, they might rely on the officer's testimony or, in an extreme case – say one involving a serious accident – they might access the device's logs or otherwise analyze it forensically.

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    Reading #5, I'm not sure this is any better. – A.V. Oct 20 '15 at 23:04
  • @A.V. I'd read #5 as saying "technology changes fast, so we're not going to list everything...if it's a hands-on feature, it's prohibited." In practice, cops are looking to see whether the device is in your hand or not in your hand, or post-accident what features were running at crash timel – Pat W. Oct 21 '15 at 2:55

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