Distracted driving is a problem of epidemic proportions on America’s roadways. In 2009, there were reports of distracted driving in 16% of fatal crashes, with nearly 5,500 people killed, and 450,000 more people were injured in crashes involving distracted driving. In 2010, over 3,000 people died in crashes related to distracted driving. Distracted driving has eclipsed drunk driving as the number one killer of American teens and the driving public’s top safety concern.
Over the past two years, the U.S. Department of Transportation (DOT) has been involved in a campaign against distracted driving. The DOT has held two national summits on distracted driving since 2009 and launched several public awareness campaigns to emphasize the dangers of distracted driving.
Among these campaigns is the DOT’s “Faces of Distracted Driving” series of videos, the latest of which can be seen here and features the story of Brittanie Montgomery, a 19-year old college student who was killed when she lost control of her vehicle while talking on her cell phone.
In 2010, as we informed you in a previous alert, the Federal Motor Carrier Safety Administration (FMCSA), an agency of the DOT, issued a regulation prohibiting drivers of commercial motor vehicles from texting while driving. In 2011, another DOT agency, the Pipeline and Hazardous Materials Safety Administration (PHMSA), banned all drivers transporting hazardous materials from texting while driving. Drivers who violate these DOT regulations prohibiting texting while driving, and companies who let them, are subject to substantial civil and criminal penalties.
At present, nine states and the District of Columbia prohibit all drivers from using hand-held cell phones while driving. Numerous states prohibit all cell phone use by special classes of drivers, such as teens and other novice drivers and school bus drivers carrying passengers. Thirty-five states, including North Carolina, ban all drivers from texting while driving.
In 2011, the National Transportation Safety Board issued a recommendation that the 50 states and the District of Columbia ban non-emergency use of all portable electronic devices (PEDs) by drivers of any motor vehicle. Under this recommendation, banned PEDs would include all cell phones, laptops, smart phones, and “push-to-talk” mobile phones (both hand-held and hands-free), other than those designed to support the task of driving.
For 2012, the DOT’s campaign against distracted driving now includes a ban on the use of hand-held cell phones by drivers of commercial motor vehicles. The FMSCA and the PHMSA jointly issued a final rule, effective January 3, 2012, which specifically prohibits all drivers of commercial motor vehicles from holding and using a “mobile telephone” while operating their vehicles, except when necessary to communicate with law enforcement officials or other emergency services.
Like the DOT’s ban on texting while driving, the new prohibition against using hand-held cell phones while driving applies to drivers of commercial motor vehicles (CMVs). Under DOT regulations, CMVs are commercial vehicles such as trucks or buses that are used on highways in interstate commerce and weigh more than 10,000 pounds, carry more than 8 passengers, or transport any quantity of hazardous materials. Some farming and harvesting vehicles are exempt from DOT regulations.
Under the new rule, a mobile telephone includes all cell phones, smart phones, and push-to-talk mobile phones, but does not include two-way or citizens band (CB) radio services. In addition to prohibiting CMV drivers from holding a mobile phone to conduct a voice communication, the rule also bans them from reaching for a mobile phone in an unsafe manner and from pressing more than a single button to initiate, answer, or terminate a call. CMV drivers are not permitted to use hand-held mobile phones while driving or stopped at traffic lights, stop signs or in traffic delays, but can use them if the vehicle is safely stopped off the highway or to the side of the road.
The new rule permits hands-free use of a mobile phone, including a push-to-talk phone, as long as the CMV driver does not reach for, dial, or hold the mobile phone in his or her hand while driving and the driver is able to touch a single-button control needed to operate the phone from a normal seated position with the seat belt fastened. This can be accomplished by using a wired or wireless earpiece or the speakerphone function of the mobile telephone (e.g., if the mobile phone is mounted in a cradle or similar device near the driver) or a single-button control on or near the steering wheel or dashboard.
CMV drivers who violate the new rule will face federal civil penalties of up to $2,750 for each offense and disqualification from operating a CMV if they have multiple offenses. Commercial bus and truck companies could incur a maximum penalty of $11,000 for requiring or allowing CMV drivers to use hand-held cell phones while driving. In addition, multiple convictions for violating a state law or local ordinance against using a hand-held mobile phone while driving will be grounds for disqualifying a commercial driver’s license holder from operating a CMV.
Employers should consider updating their company policies and handbooks to reflect these new rules and applicable state law. Having a written policy governing use of cell phones and other portable electronic devices while operating a company vehicle could help avoid potential civil liability as well as civil penalties under the rules.
This article was originally co-written by Louis B. Meyer, a Partner in Poyner Spruill’s Employment Law section. Meyer was appointed by Gov. Bev Perdue as District Court Judge for the Tenth Judicial District in August of 2012.