FAQ: New Wireless Communications While Driving Law
phillips, hunt & walker About Distracted Driving
Distracted driving is one of the leading causes of injury and death across the country. Florida has taken a step in the right direction to eventually enforce making it illegal.
In some outlets, the law is being misreported. Here is what is really going on with the law.
The amended (not new) “Wireless Communications While Driving Law” is in a trial status official as of July 1, 2019. You can receive a warning ticket. Here is what you need to know about texting and data use and driving.
FAQ:
What changed? What did the prior law say?
On October 1, 2013, the Florida government enacted the Florida Ban on Texting While Driving Law under statute 316.305. This statute loosely prohibited anyone operating a motor vehicle from using their phone to type letters, symbols, numbers, or other characters.
Under the OLD LAW, drivers had to first be pulled over on suspicion of another traffic offense, making texting while driving a secondary offense as opposed to a primary one. So if a law enforcement officer saw someone texting and driving, he/she could not pull them over solely for doing so. However, if they are texting and driving while also speeding, running a red light, not stopping at a stop sign, or a similar offense, they can be pulled over for that and then subsequently receive a citation for texting and driving.
The AMENDED LAW allows a person to be pulled over as a primary offense for texting and driving as defined and excepted as discussed in this blog.
When can I be cited?
Despite the PR campaign, there can be no citations until January 1, 2020. Only warnings can be issued as of July 1, 2019.
Can my phone be searched or seized or records be subpoenaed?
No. And law enforcement must tell you that. The law states, “A law enforcement officer who stops a motor vehicle for a violation of paragraph (a) must inform the motor vehicle operator of his or her right to decline a search of his or her wireless communications device.” There are exceptions in the case of a crash resulting in death or personal injury.
This is important to remember. You do not have to hand your phone over and probably shouldn’t.
What is to require this law being used in a race neutral fashion?
Many were worried this law would be used as subterfuge to pull over people based on race and then use the “texting and driving” violation to look for warrants, other crimes, harass or otherwise use racial bias in enforcement.
The law enforcement officer must record the race and ethnicity of the violator in order for the state to audit use of the law. However, this may not go far enough, as law enforcement only requires tracking where this citation is issued. It still could be used as “probable cause” to pull someone over, but not result in a ticket for that. In other words, there still may be issues behind it.
What devices are included?
A cell phone, a tablet, a laptop, a two-way messaging device, or an electronic game that is used or capable of being used in a handheld manner. The term does not include a safety, security, or convenience feature built into a motor vehicle which does not require the use of a handheld device.
Is hands free mode okay?
Yes. The term does not include a safety, security, or convenience feature built into a motor vehicle which does not require the use of a handheld device.
Can I use my device while stopped?
Yes. A motor vehicle that is stationary is not being operated and is not subject to the prohibition in this paragraph.
What does the “new law” say?
First off, it’s not really a “new law.” It is basically the same law with amendments. And it isn’t truly active yet, as only warning tickets can be issued until 2020. Those amendments are as follows. Note underlined sections are new and the sections with a line through them are removed.
Revision:
“(d) Authorize law enforcement officers to stop motor vehicles and issue citations
as a secondary offenseto persons who are texting while driving.”
That’s the main paragraph people refer to. It is no longer a secondary offense, meaning law enforcement does not need to pull you over for a separate violation. You can now now be warned based on distracted driving alone and cited as of 2020.
Revision:
7. Operating an autonomous vehicle, as defined in s. 316.003, in autonomous mode.
(c) A law enforcement officer who stops a motor vehicle for a violation of paragraph (a) must inform the motor vehicle operator of his or her right to decline a search of his or her wireless communications device and may not:
1. Access the wireless communications device without a warrant.
2. Confiscate the wireless communications device while awaiting issuance of a warrant to access such device.
3. Obtain consent from the motor vehicle operator to search his or her wireless communications device through coercion or other improper method. Consent to search a motor vehicle operator’s wireless communications device must be voluntary and unequivocal.
(d)(c) Only in the event of a crash resulting in death or personal injury, a user’s billing records for a wireless communications device or the testimony of or written statements from appropriate authorities receiving such messages may be admissible as evidence in any proceeding g to determine whether a violation of paragraph (a) has been committed.
This means law enforcement cannot access your phone without a warrant. Without accessing your phone or phone records, it will be difficult to prove the case except mere testimony without an individual handing over their phone. This is an important Constitutional Rights issue.
More Revisions:
(5) When a law enforcement officer issues a citation for a violation of this section, the law enforcement officer must record the race and ethnicity of the violator. All law enforcement agencies must maintain such information and report the information to the department in a form and manner determined by the department. Beginning February 1, 2020, the department shall annually report the data collected under this subsection to the Governor, the President of the Senate, and the Speaker of the House of Representatives. The data collected must be reported at least by statewide totals for local law enforcement agencies, state law enforcement agencies, and state university law enforcement agencies. The statewide total for local law enforcement agencies shall combine the data for the county sheriffs and the municipal law enforcement agencies.
Enforcement of this section by state or local law enforcement agencies must be accomplished only as a secondary action when an operator of a motor vehicle has been detained for a suspected violation of another provision of this chapter, chapter 320, or chapter 322.
This addition it to make sure the law is enforced in a race neutral manner, such that law enforcement are not using it in a biased fashion. This may nor go far enough to do what is intended, as it only tracks when a “citation” is issued. Not when it is used a probable cause and a citation is issued for another violation.
Next Revision:
Revisions to 316.306 School and work zones; prohibition on the use of a wireless communications device in a handheld manner.—
(1) For purposes of this section, the term “wireless communications device” has the same meaning as provided in s. 316.305(3)(a). The term includes, but is not limited to, a cell phone, a tablet, a laptop, a two-way messaging device, or an electronic game that is used or capable of being used in a handheld manner. The term does not include a safety, security, or convenience feature built into a motor vehicle which does not require the use of a handheld device.
This defines what a wireless communications device is and allows hands free mode.
Next Revision:
(2) It is the intent of the Legislature to:
(a) Improve roadway safety in school and work zones for all vehicle operators, vehicle passengers, bicyclists, pedestrians, and other road users.
(b) Prevent crashes related to the act of driving while using a wireless communications device in a handheld manner when operating a motor vehicle while the vehicle is in motion.
(c) Reduce injuries, deaths, property damage, health care costs, health insurance rates, and automobile insurance rates related to motor vehicle crashes.
(d) Authorize law enforcement officers to stop motor vehicles and issue citations to persons who are driving in school or work zones while using a wireless communications device in a handheld manner as provided in subsection (3).
(3)(a)1. A person may not operate a motor vehicle while using a wireless communications device in a handheld manner in a designated school crossing, school zone, or work zone area as defined in s. 316.003(101). This subparagraph shall only be applicable to work zone areas if construction personnel are present or are operating equipment on the road or immediately adjacent to the work zone area. For the purposes of this paragraph, a motor vehicle that is stationary is not being operated and is not subject to the prohibition in this paragraph.
2.a. During the period from October 1, 2019, through December 31, 2019, a law enforcement officer may stop motor vehicles to issue verbal or written warnings to persons who are in violation of subparagraph (a)1. for the purposes of informing and educating such persons of this section. This subparagraph shall stand repealed on October 1, 2020.
This section defines why the new law was issued and also the “warning period” from “October 1, 2019, through December 31, 2019″ “for the purposes of informing and educating such persons of this section. This subparagraph shall stand repealed on October 1, 2020.” In other words, one cannot be cited until December 31, 2019.
Next revision:
b. Effective January 1, 2020, a law enforcement officer may stop motor vehicles and issue citations to persons who are driving while using a wireless communications device in a handheld manner in violation of subparagraph (a)1.
(b) Paragraph (a) does not apply to a motor vehicle operator who is:
1. Performing official duties as an operator of an authorized emergency vehicle as defined in s. 322.01, a law enforcement or fire service professional, or an emergency medical services professional.
Meaning: authorized emergency vehicles are excluded if doing official duties.
More revisions:
2. Reporting an emergency or criminal or suspicious activity to law enforcement authorities.
Meaning: calling 911 or reporting a crime or other issue are excluded.
More Revisions:
3. Receiving messages that are:
a. Related to the operation or navigation of the motor vehicle;
b. Safety-related information, including emergency, traffic, or weather alerts;
c. Data used primarily by the motor vehicle; or
d. Radio broadcasts.
4. Using a device or system in a hands-free manner for navigation purposes.
5. Using a wireless communications device hands-free or hands-free in voice-operated mode, including, but not limited to, a factory-installed or after-market Bluetooth device.
6. Operating an autonomous vehicle, as defined in s. 316.003, in autonomous mode.
These are more important exceptions you should know.
More revisions:
(c) A law enforcement officer who stops a motor vehicle for a violation of paragraph (a) must inform the motor vehicle operator of his or her right to decline a search of his or her wireless communications device and may not:
1. Access the wireless communications device without a warrant.
2. Confiscate the wireless communications device while awaiting issuance of a warrant to access such device.
3. Obtain consent from the motor vehicle operator to search his or her wireless communications device through coercion or other improper method. Consent to search a motor vehicle operator’s wireless communications device must be voluntary and unequivocal.
(d) Only in the event of a crash resulting in death or serious bodily injury, as defined in s. 316.027, may a user’s billing records for a wireless communications device, or the testimony of or written statements from appropriate authorities receiving such messages, be admissible as evidence in any proceeding to determine whether a violation of subparagraph (a)1. has been committed. (e) Law enforcement officers must indicate the type of wireless communications device in the comment section of the uniform traffic citation. (4)(a) Any person who violates this section commits a noncriminal traffic infraction, punishable as a moving violation, as provided in chapter 318, and shall have 3 points assessed against his or her driver license as set forth in s. 322.27(3)(d)7. For a first offense under this section, in lieu of the penalty specified in s. 318.18 and the assessment of points, a person who violates this section may elect to participate in a wireless communications device driving safety program approved by the Department of Highway Safety and Motor Vehicles. Upon completion of such program, the penalty specified in s. 318.18 and associated costs may be waived by the clerk of the court and the assessment of points must be waived. (b) The clerk of the court may dismiss a case and assess court costs in accordance with s. 318.18(11)(a) for a nonmoving traffic infraction for a person who is cited for a first time violation of this section if the person shows the clerk proof of purchase of equipment that enables his or her personal wireless communications device to be used in a hands-free manner. (5) Notwithstanding s. 318.21, all proceeds collected pursuant to s. 318.18 for violations of this section must be remitted to the Department of Revenue for deposit into the Emergency Medical Services Trust Fund of the Department of Health.
This section governs your rights, including being free from search unless in a wreck.
More revisions:
(6) When a law enforcement officer issues a citation for a violation of this section, the law enforcement officer must record the race and ethnicity of the violator. All law enforcement agencies must maintain such information and must report such information to the department in a form and manner determined by the department. Beginning February 1, 2020, the department shall annually report the data collected under this subsection to the Governor, the President of the Senate, and the Speaker of the House of Representatives. The data collected must be reported at least by statewide totals for local law enforcement agencies, state law enforcement agencies, and state university law enforcement agencies. The statewide total for local law enforcement agencies must combine the data for the county sheriffs and the municipal law enforcement agencies.
Once again, this requires monitoring of those warned or cited to make sure the implementation of this law is equal.
More revisions:
Section 3. (1) The Department of Highway Safety and Motor Vehicles, in consultation with the Department of Transportation, may implement a statewide campaign to raise awareness of and encourage compliance with ss. 316.305 and 316.306, Florida Statutes. The Department of Highway Safety and Motor Vehicles may use television messaging, radio broadcasts, print media, digital strategies, social media, and any other form of messaging deemed necessary and appropriate by the department to implement the campaign.
(2) The Department of Highway Safety and Motor Vehicles may contract with counties, local law enforcement agencies, safety councils, and public schools to assist with planning and conducting the statewide campaign.
This allows promotion of the law to encourage compliance and education.
Didn’t this change to a primary offense a few years ago?
A few years ago, there was a “fake news” campaign circulating around the internet. The bill didn’t pass the Legislature, but people said it did. You can read more about that here.
We invite you to review our verdicts, our accolades and awards and what clients have to say about us and give us a call for a free consultation where our lawyers will consult with you personally. John represents clients in Florida, Georgia and Alabama and before the U.S. Supreme Court with passion and compassion. Our firm handles a wide variety of injury and death cases, criminal defense, family law and a host of high profile matters. We can be emailed at help@floridajustice.com or call us at (904) 444-4444 in Florida or (912) 444-4444 in Georgia.