Texting while Driving in Oregon

Texting while driving in Oregon is not only potentially dangerous, it’s unlawful.

Texting while Driving in Oregon

ORS 811.507 “Operating motor vehicle while using mobile communication device” states:

(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 persons employment as a public safety officer, as defined in ORS 348.270 (Scholarships for children of public safety officers and former foster children);

(g) Is operating a tow vehicle or roadside assistance vehicle while acting in the scope of the persons 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 persons 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 persons 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.

Texting while Driving is Distracted Driving

The fundamental concern of texting while driving has to do with the inherent distractions it causes to the driver. The Centers for Disease Control and Prevention (CDC) has argued that, in 2013, 3,154 people were killed in crashes involving a distracted driver, compared to 3,328 in 2012, and in 2013, 424,000 people were injured in motor vehicle crashes involving a distracted driver, an increase of almost 10% since 2011. Aside from the time actually spent looking at the message or face of the phone, drivers sending and receiving text messages are further distracted before and after such messages.

Texting while Driving and Criminal Liability

Technically, Oregon law has not made texting while driving a criminal offense. ORS 811.507 has made texting while driving unlawful and a violation (meaning that the activity is punishable with a fine only, and not jail time, probation, etc). However, if texting while driving were to result in an accident and damage to property or injuries to persons, texting while driving could lead to criminal charges including– but not limited to– the following crimes that are often charged in Oregon DUI cases:

Texting while Driving and Civil Liability

Even in cases where a driver who is texting while driving is not subject to criminal charges, an accident involving texting while driving could result in civil liability (e.g. a lawsuit). Common law negligence claims allow for a party who’s been injured or who’s property has been damaged to sue another driver for negligence if texting while driving caused or contributed to an accident. In criminal cases, a driver who was texting while driving might have a right to remain silent or a legal challenge to a warrantless search of the driver’s cell phone, but in a civil case, the driver could have to produce records and answer questions in depositions pertaining to how and when the cell phone was used. The driver’s phone could also be forensically examined in either a criminal or civil case. Put more bluntly: Simply hiding a phone or denying using the phone prior to an accident will not likely avoid liability or responsibility.

Is the “Textalyzer” coming to Oregon?

According to the U.S. Department of Transportation, 3,179 people were killed in car crashes involving a distracted driver in 2014. In 2015, the number rose 8%. In 2016, NPR and the NY Times reported that the New York Legislature is attempting to pass a bill which would allow the searching of cell phones with a device similar to a “breathalyzer,” informally called a “textalyzer” which would analyze cell phones to see if they were used prior to a stop or accident. In 2014, the Supreme Court of the United States ruled unanimously that police could not search a cell phone without a warrant, but the government officials pushing the bill have suggested they will attempt to use the same “implied consent” laws that allows the police to demand that drivers submit to a breath test following an arrest for DUI. Interestingly enough, “implied consent” laws are being challenged before the Supreme Court in the spring of 2016.

Texting while Driving: An Alternative

The simplest way to avoid the risks and potential legal problems associated with texting and driving is to wait to respond to text messages, or pull over into a safe location and then respond to text messaged. For longer trips, it may be beneficial to make of an SMS auto-responder. Similar to email auto-responders, SMS auto-responders allow your phone to send an automated response via text message as soon as you receive a text message. The auto-responder can be set to a variety of pre-formatted or custom messages, and it could be helpful to indicate in the message that you’re driving and won’t respond to additional messages until a certain time. SMS auto-responders are made for both Google/Android cell phones and Apple/iPhones.

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