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Oregon’s Revised Distracted Driving Law: What Does It Mean?

By: Skip Winters

On October 1, 2017, Oregon’s revised distracted driving law went into effect. ORS 811.507 now applies to any “mobile communication electronic device” that is “not permanently installed in a motor vehicle.” The definition includes a “device capable of text messaging, voice communication, entertainment, navigation, accessing the Internet or producing electronic mail.” The new law also includes not just moving, but also to being “temporarily stationary because of traffic, a traffic control device or other momentary delays.”

The list of prohibited actions includes using the device if the driver is not able to “keep both hands on the steering wheel.” Presumably, if the device is permanently built in to the motor vehicle or the driver is able to use it hands free then it is okay, which allows voice activation of a mobile device, but in order to type in an address or query you have to pull over and park.

There is also an unclear exception in the law as it allows a person to “activate or deactivate” a device or “a function of the device.”

This exception will undoubtedly cause the most litigation – and with good reason. Even among law enforcement and representatives of Oregon’s Department of Transportation (ODOT), it seems they have already decided that not only can people still use functions of the device while driving (music, GPS, etc.), but they can actually reach out and touch the phone.

According to an article in the Oregonian, there seems to be tacit acknowledgement that troopers will be hard pressed to enforce the law if it applies to the GPS, for instance:

“You may touch the device once, for example, to activate a preprogrammed route, or to end navigation prompts once you’ve found your way. (Holding the phone is a no-no, so you should be able to activate that function with one hand.)”

“You’re still maintaining your requirement to be hands-free,” said Oregon State Police Sgt. Michael Berland, a patrol sergeant in the agency’s Bend Area Command. “That’s something that no trooper’s ever going to write a citation for.”

Additionally, ODOT went so far as to state on a “fact sheet” about the new law that “use of a single touch or swipe to activate or deactivate the device or a function” is allowed. Clearly, however, there is no such language in the statute itself – and telling an officer at your window, “but it was only a swipe,” may not get you out of a ticket – or explain how your negligence after an accident didn’t violate the statute.

This interpretation will likely be tested in court cases in years to come. A plain reading of the statute doesn’t allow for any such touching.

An argument can be made, as well, that a plain reading of the statute doesn’t allow drivers to have applications, like Maps, running as the statute specifically forbids drivers from using “a mobile electronic device for any purpose.” (Emphasis added.)

Criminal courts will likely get the first chance to interpret the changes, but we expect that statutory violations of ORS 811.507 used as an application of an element of negligence will make its way into civil cases rapidly thereafter.