Gemalto Mobile Phones & Portable Devices Driver

(1) As used in this section:

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(a)(A) “Driving” means operating a motor vehicle on a highway or premises open to the public, and while temporarily stationary because of traffic, a traffic control device or other momentary delays.

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(B) “Driving” does not include when the motor vehicle has stopped in a location where it can safely remain stationary and:

(i) Is pulled over on the side of, or is pulled off, a roadway;

(ii) Is in a designated parking space; or

(iii) Is required to park in the roadway to conduct construction or utility maintenance work.

(b) “Hands-free accessory” means an attachment or built-in feature for or an addition to a mobile electronic device that gives a person the ability to keep both hands on the steering wheel at all times while using the device or requires only the minimal use of a finger, via a swipe or tap, to activate or deactivate a function of the device.

(c) “Livestock” has the meaning given that term in ORS 609.125 (Definition of “livestock”).

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

(B) “Mobile electronic device” includes but is not limited to a device capable of text messaging, voice communication, entertainment, navigation, accessing the Internet or producing electronic mail.

(e) “Using a mobile electronic device” includes but is not limited to using a mobile electronic device for text messaging, voice communication, entertainment, navigation, accessing the Internet or producing electronic mail.

(2) A person commits the offense of driving a motor vehicle while using a mobile electronic device if the person, while driving a motor vehicle on a highway or premises open to the public:

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

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

(3) This section does not apply to a person:

(a) Who is employed as a commercial motor vehicle driver, or as a school bus driver, and is using a mobile electronic device within the scope of the person’s employment if the use is permitted under regulations promulgated pursuant to 49 U.S.C. 31136;

(b) Who is employed as a driver of a vehicle having a gross vehicle weight rating or gross vehicle weight of at least 10,001 pounds and is using a mobile electronic device within the scope of the person’s employment and as required under regulations promulgated pursuant to 49 U.S.C. 31137;

(c) Who is operating a two-way radio device that transmits radio communication transmitted by a station operating on an authorized frequency within the business, citizens’ or family radio service bands in accordance with rules of the Federal Communications Commission while transporting forest products, or while operating a vehicle to assist in logging operations, within the scope of the person’s employment;

(d) Who is using a two-way radio device while operating a school bus or school activity vehicle within the scope of the person’s employment;

(e) Who is using a two-way radio device or operating a two-way radio device that transmits radio communication transmitted by a station operating on an authorized frequency within the business, citizens’ or family radio service bands in accordance with rules of the Federal Communications Commission while operating a vehicle owned or contracted by a utility for the purpose of installing, repairing, maintaining, operating or upgrading utility service, including but not limited to natural gas, electricity, water or telecommunications, within the scope of the person’s employment;

(f) Who is using a two-way radio device while operating a vehicle wider than the lane of travel, a vehicle transporting livestock or a vehicle requiring a slow-moving vehicle emblem under ORS 815.110 (Requirements for and use of slow-moving vehicle emblem), and the use of the device facilitates the safe operation of the vehicle; or

(g) Who is using a two-way radio device while operating a pilot or safety vehicle used to assist the safe movement of a vehicle described in paragraph (f) of this subsection, and the use of the device facilitates the safe movement of the vehicle described in paragraph (f) of this subsection.

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

(a) Used the mobile electronic device to communicate if the person was summoning or providing medical or other emergency help if no other person in the vehicle was capable of summoning help;

(b) Was 18 years of age or older and was using a hands-free accessory;

(c) Was driving an ambulance or emergency vehicle while acting within the scope of the person’s employment;

(d) Was a police officer, firefighter or emergency medical services provider and was acting within the scope of the person’s employment;

(e) Was 18 years of age or older, held a valid amateur radio operator license issued or any other license issued by the Federal Communications Commission and was operating an amateur radio;

(f) Was operating a two-way radio device that transmits radio communication transmitted by a station operating on an authorized frequency within the business, citizens’ or family radio service bands in accordance with rules of the Federal Communications Commission to summon medical or other emergency help; or

(g) Was using a medical device.

(5) The offense described in this section, driving a motor vehicle while using a mobile electronic device, is:

(a) Except as provided in paragraph (b) of this subsection, for a person’s first conviction, a Class B traffic violation.

(b) For a person’s first conviction, if commission of the offense contributes to an accident described in ORS 811.720 (When accident must be reported to Department of Transportation), a Class A traffic violation.

(c) For a person’s second conviction within a 10-year period following the date of the person’s first conviction, a Class A traffic violation.

(d) For a person’s third or subsequent conviction within a 10-year period preceding the date of the person’s current conviction, a Class B misdemeanor.

(6) In addition to any other sentence that may be imposed, the court shall impose a minimum fine of $2,000 on a person convicted of a Class B misdemeanor under subsection (5)(d) of this section.

(7) For purposes of this section, sentences for two or more convictions that are imposed in the same sentencing proceeding are considered to be one sentence.

(8)(a) For a person’s first conviction of driving a motor vehicle while using a mobile electronic device, the court may suspend the fine to be imposed under subsection (5)(a) of this section on the condition that the person, within 120 days of sentencing:

(A) Complete at the person’s own expense a distracted driving avoidance course approved by the Department of Transportation under ORS 811.508 (Distracted driving avoidance course); and

(B) Provide proof of completion to the court.

(b) The court may schedule a hearing to determine whether the person successfully completed the distracted driving avoidance course.

(c) If the person has successfully completed the requirements described in paragraph (a) of this subsection, the court shall enter a sentence of discharge. Notwithstanding ORS 153.021 (Minimum fines), a sentence of discharge imposed under this paragraph may not include a fine.

(d) If the person has not successfully completed the requirements described in paragraph (a) of this subsection, the court shall:

(A) Grant the person an extension based on good cause shown; or

(B) Impose the fine under subsection (5)(a) of this section.

(9) The department shall place signs on state highways to notify drivers that it is unlawful to drive a motor vehicle on the highways of this state while using a mobile electronic device and violators are subject to criminal penalties. [2007 c.870 §2; 2009 c.834 §1; 2011 c.530 §1; 2013 c.757 §1; 2017 c.629 §§1,2; 2018 c.32 §1]

Note: Section 5, chapter 629, Oregon Laws 2017, provides:

Sec. 5. The amendments to ORS 811.507 (Operating motor vehicle while using mobile electronic device) by section 1, chapter 629, Oregon Laws 2017, apply to:

(1) Offenses committed on or after October 1, 2017; and

(2) For purposes of determining prior convictions within a 10-year period under ORS 811.507 (Operating motor vehicle while using mobile electronic device) (5)(c) or (d), prior convictions occurring on or after July 1, 2018. [2017 c.629 §5; 2018 c.32 §3]

Note: Section 4, chapter 32, Oregon Laws 2018, provides:

Sec. 4. (1) A person convicted of an offense under ORS 811.507 (Operating motor vehicle while using mobile electronic device) (5)(c) or (d), the classification of which was enhanced due to the court taking into account one or more prior convictions occurring before July 1, 2018, may request in writing that the court redetermine the classification of the offense.

(2) Upon receipt of a request under this section, if the court determines that the classification of the offense was based upon the court taking into account one or more prior convictions occurring before July 1, 2018, the court shall vacate the judgment of conviction and enter a new judgment of conviction for a Class B or Class A traffic violation in accordance with ORS 811.507 (Operating motor vehicle while using mobile electronic device) (5)(a) or (b). [2018 c.32 §4]

Note: 811.507 (Operating motor vehicle while using mobile electronic device) was added to and made a part of the Oregon Vehicle Code by legislative action but was not added to ORS chapter 811 or any series therein. See Preface to Oregon Revised Statutes for further explanation.

Notes of Decisions

Where defendant was looking at mobile communica­tion device while driving but did not speak into device or push any buttons on device, defendant did not use device under this sec­tion, which prohibits only talking and texting on mobile communica­tion device while driving. State v. Rabanales-Ramos, 273 Or App 228, 359 P3d 250 (2015)

See also annota­tions under ORS chapter 483 in permanent edi­tion.

Notes of Decisions

Under Former Similar Statute

A party in viola­tion of a motor vehicle statute is neg­li­gent as a matter of law unless he introduces evidence from which the trier of fact could find that he was acting as a reasonably prudent per­son under the circumstances. Barnum v. Williams, 264 Or 71, 504 P2d 122 (1972)

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Law Review Cita­tions

Under Former Similar Statute

10 WLJ 207 (1974)

News Reports

• “Oregon's cell phone law requires the use of a hands-free accessory while using a mobile communica­tion device and operating a vehicle . . .”

  http://www.newberggraphic.com/news/2011/January/28/Police.Fire.Public.Safety/ndpd.column.officers.often.see.violators.of.states.new.cell.phone.law/news.aspx
• “. . . unlike the seat belt law under which you have to doing something else wrong in order to be pulled over, talking on a cell phone without a bluetooth or ear piece WILL put flashing lights in your rear-view mirror for that viola­tion alone.”
• “Since Oregon enacted their new cell phone law on January 1st, many people have asked me if it applies to people riding bicycles. . . .”

  http://bikeportland.org/2010/02/09/does-oregons-new-cell-phone-law-apply-to-people-on-bikes/

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