Dumb Laws: Hand-Held Cell Phone Prohibition

Settle down. No one is claiming laws prohibiting distracted driving are dumb.  If the truth be told…  1) every driver agrees it is dangerous   2) every driver agrees it should be prohibited  3) every driver is guilty.  It’s not an easy problem to wrap up in a tight little package.  Come January 1st, 2014, all drivers, not just commercial motor vehicles (CMV), will be prohibited from hand-held cell phone use.  However, this is the third log on the cell phone prohibition fire for truckers in Illinois.  It’s written poorly, it mocks uniformity and it will hurt truckers.

A review is in order of the first two laws governing the hand-held prohibition in Illinois, and then a discussion of the problems with the 2014 law.

2012 Federal Law  |  Part 392.82 At the end of 2011, the Federal Motor Carrier Safety Administration enacted a hotly contested and disputed new regulation regarding hand-held cell phone use by CMV drivers. The problem with this law in Illinois is only the Illinois State Police have the authority to enforce it.  If distracted driving by CMV drivers is such a dangerous problem, all police should have had a way to enforce it. Included in the regulation was a requirement that all states had three years to enact a state level, which would solve the local police enforcement problem.

2013 State Law  |  625 ILCS 5.0/6-526 & 527 At the end of 2012, to the amazement of the entire free world, Illinois was one of the first to enact a state level, hand-held phone prohibition for CMV drivers. The intent of this law was to give local police the authority to enforce the ban…or did it?  This law was enacted under the Uniform Commercial Driver’s License Act, which means that only drivers operating CMVs which require a CDL can be cited.  A future article will talk about the legal disparities of the CMV definitions, but this is one of them.

Under the federal law mentioned above, the Illinois State Police could enforce the prohibition on any driver operating a vehicle 10,001 pounds or more.  Under the State law, local police could only enforce the prohibition on drivers operating vehicles exceeding the 26,001 pound threshold (generally speaking).  This created confusion for both enforcement and industry.

2014 State Law  |  625 ILCS 5/12-610.2 This is where all horses are let out of the barn.

The first and most glaring issue is police officers will not know which section to write violations under. When a driver is caught talking on a hand-held phone while operating a CMV, the average police officer will cite this section. This will incur penalties to both the operator’s side and the CDL side of the driver’s license.  If the driver was operating a CMV required to have a CDL, the proper citation is under the CDL section. Good luck explaining CDL and classification requirements to non-truck officers who can stop truckers talking on the phone.

The second problem is the use of the ambiguous term “violation”.  A violation is an action committed by a person. It is not a disposition of an offense. However this law makes the action a disposition without due process.  Illinois law, in the Correctional Code, allows for cases to be disposed of in certain ways, using certain legal terms. The term “violation” is not one of them. Going around this system creates problems.  By doing so there is not a uniform way to alert police officers, circuit clerks, prosecutors, regulatory officials and future employers that a driver has had previous issues with a certain law.

What is a violation?  If a police officer stops and issues a verbal or written warning only, is that considered a “violation”?  If a police officer merely observes a driver three days in a row on his cell phone, and stops him on day four with a citation, is that considered a fourth “violation”? How many “violations” can a driver receive? It’s endless.  There is no way to track it.  With vague language comes rouge interpretation.

The companion problem with a dubious term like “violation” is penalties are predicated on it.  The first violation yields a fine of $75. The second violation is $100. The third? $125.  Fourth? $150.  If there is no way to know how many “violations” there have been, how is the appropriate fine supposed to be assessed?

The law also says the first “violation” is not a moving violation.  The second and subsequent violations are movers.  If no one knows how many violations have occurred, points could be assigned to a CDL holder operating a CMV only because the officer improperly cited under this section and does not how many “violations” have occurred.

The last problem is that once again the General Assembly has set statutory fines which are less than bail required by the Supreme Court (Rule 526(a)). This is similar to the $50 fine for violating a local weight restricted highway.  If the arresting officer believes this is the first or second “violation”, the trucker should receive either a $75 or $100 fine.  However, bail is $120. The only way a police officer can assess the proper (lesser) fine is to make the driver take time off work, go to court, be assessed the $75 fine, and then eat all the court costs which could be hundreds of dollars more.

It’s a dumb law.  Good intentions, extremely poor execution.  The truckers will suffer for it yet again.


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