What every Oregon bicycle rider needs to know about the new distracted driving law

On October 1, 2017, Oregon’s new Distracted Driving law went into effect. The law increases its coverage and raises the penalties for violation. Here are a few things every Oregon bicycle rider should know about the new law.


Why Did We Need a New Distracted Driving Law?

This may seem like a dumb question for a bicycle rider or pedestrian. Since we are vulnerable users we know all too well the consequences of having drivers who are watching their cellphone screens attempt to drive around us. Since we are not encapsulated inside a steel compartment looking at the world through safety glass we see the shocking number of drivers who are attempting to maneuver their cars and trucks down the streets we are using while being completely tuned out to anything but what is on the screen before them. And the statistics confirm how deadly this behavior becomes for everyone. More than 4,000 crashes were caused by distraction in Oregon in 2014. And between 2011 and 2015 there were 54 fatalities and 15,150 injuries in Oregon caused by drivers (see ODOT’s 2014 Oregon Traffic Crash Summary).


In February 2017 an ODOT Interdisciplinary Study was published with important findings about distracted driving, including that while 84% of respondents felt uncomfortable with a driver who was distracted, 75% admitted to doing it while alone and 44% admitted to driving distracted with passengers, and this was just for those folks who responded. Ask any rider on the street and the numbers seem far higher.  The reasons are complex but the study relates that skewed reward seeking behavior patterns exist due to several causes, most notably a lack of negative legal consequences or negative social pressure. The bottom line is that humans get a lot of useful and fun stuff by using mobile communication devices while driving, from instructions on where to go and how to get there, to checking in with loved ones on the phone, playing Angry Birds (a cultural favorite we are told), to accepting the next fare for Uber drivers and sending important text messages. AND until October 1, 2017 there was little chance distracted driving would result in a traffic ticket unless one got caught doing it during a crash. The study concluded we needed to ratchet up negative consequences by changing the law and increasing education and law enforcement.


In our office we have a case where a pizza delivery driver was checking his Amazon order while he made the nightly cash run to the bank and failed to see a helpless pedestrian who had fallen directly in front of him in the road with fatal consequences. That moment of inattention resulted in the loss of life of a father leaving behind devastated family and a pregnant fiancé. He was charged and convicted of  Vulnerable User Careless Driving and Distracted Driving but those consequences do next to nothing to reconcile the disaster he caused. And the only reason he was charged was because a hard working motorcycle officer took the time to analyze what was on his cell phone. In most collisions, the distracted driving is never discovered because law enforcement resources are stretched so thin in investigating crashes.


The law until October 1, 2017 was very murky. While it was illegal to drive while holding a cellphone, an August 2015 Oregon Court of Appeals decision clarified that the enforcement limits of the old law did not include use of a GPS or music device so that an Oregon State Police officer could not pull a driver over unless it was established that a cellphone was being used. The resulting confusion in application of the law led to creation of the Distracted Driving Task Force which recommended that the law be changed to expand its scope and include the deterrent of the risk of a ticket into the decision to use a mobile device while driving, even if it was not a telephone.


What Does the New Law Prohibit?

HB 2597 created the changes to ORS 811.507 that greatly expand its application. The new law applies to any “Mobile Communication Device” that is “not permanently installed in a motor vehicle.” And the definition includes a “device capable of text messaging, voice communication, entertainment, navigation, accessing the Internet or producing electronic mail.” And the prohibition extends not just to moving but also to being “temporarily stationary because of traffic, a traffic control device or other momentary delays.” The exceptions include when making an emergency call or when pulled off the roadway or parked.


Prohibited actions include using the device if the driver is not able to “keep both hand 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 only if the person is 18 years or older. However, in order to type in an address or query you have to pull over and park. There is also a somewhat unclear exception built in to the law as it allows a person to “activate or deactivate” a device or “a function of the device” which has been described as including a “single touch or swipe.” It has been argued that this exception will allow Uber and Lyft drivers to swipe and accept a fare while driving, a legal assertion that has not yet been tested in court.


What Are the Negative Consequences of Violating the New Law?

For a first offense, there is a presumptive fine of $260.  A Distracted Driving Course option, if offered, will reduce the fine but not make the conviction on the driver’s record go away. For a second offense or first offense which causes a crash, the presumptive fine is $435.  For the third offense in ten years, the charge becomes a Class B misdemeanor traffic crime which may include up to a six month sentence in the county jail. These are some very negative consequences! And the driver’s insurance company will undoubtedly cause a substantial increase in the cost of future liability insurance which adds additional substantial financial penalties.


ORS 811.507

The new law provides:

Operating motor vehicle while using mobile communication device; exceptions; penalty;

(1)As used in this section:

(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.

(2)A person commits the offense of operating a motor vehicle while using a mobile communication device if the person, while operating a motor vehicle on a highway, uses a mobile communication device.

(3)This section does not apply to a person who activates or deactivates a mobile communication device or a function of the device or who uses the device for voice communication if the person:

(a)Is summoning medical or other emergency help if no other person in the vehicle is capable of summoning help;

(b)Is using a mobile communication device for the purpose of farming or agricultural operations;

(c)Is operating an ambulance or emergency vehicle;

(d)Is 18 years of age or older and is using a hands-free accessory;

(e)Is operating a motor vehicle while providing public safety services or emergency services;

(f)Is operating a motor vehicle while acting in the scope of the person’s employment as a public safety officer, as defined in ORS 348.270 (Scholarships for children of public safety officers);

(g)Is operating a tow vehicle or roadside assistance vehicle while acting in the scope of the person’s employment;

(h)Holds a valid amateur radio operator license issued or any other license issued by the Federal Communications Commission and is operating an amateur radio;

(i)Is operating a two-way radio device that transmits radio communication transmitted by a station operating on an authorized frequency within the citizens’ or family radio service bands in accordance with rules of the Federal Communications Commission;

(j)Is 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, while acting in the scope of the person’s employment; or

(k)Is using a function of the mobile communication device that allows for only one-way voice communication while the person is:

(A)Operating a motor vehicle in the scope of the person’s employment;

(B)Providing transit services; or

(C)Participating in public safety or emergency service activities.

(4)The offense described in this section, operating a motor vehicle while using a mobile communication device, is a Class C traffic violation.

(5)The Department of Transportation shall place signs on state highways to notify drivers that violation of this section is subject to a maximum fine of $500. [2007 c.870 §2; 2009 c.834 §1; 2011 c.530 §1; 2013 c.757 §1]


What Law Enforcement Officers Are Saying About the New Law

For a view into how law enforcement officers look at the new law, the enforcement parameters, and some common sense views on its application, listen to this recent podcast on Jefferson Public Radio:

Oregon Cracks Down on Cell Use in Cars October 1 (9/25/2017)

Does the New Distracted Driving Law Apply to Bicycle Riders?

ORS 811.507 states that it applies to “operating” a “motor vehicle” on a “highway or premises open to the public”. While ORS 814.400 states that “a bicycle is a vehicle”, a bicycle is not a “motor vehicle”. By its terms of application, the new Distracted Driving law only applies to vehicles with motors. However a driver’s insurance defense lawyer may still try to assert that a bicycle rider’s use of a mobile device was negligence and contributed to a collision with a motor vehicle.  ♦