Distracted Driving Laws

August 15th, 2023

The Fatality Analysis Reporting System (FARS) has estimated that in the year 2020, 3,142 people lost their lives in the United States due to distracted driving. Data indicates that an estimated additional 424,000 people were injured in motor vehicle collisions involving distracted drivers. An estimated 566 non-occupants, such as pedestrians and bicyclists, were killed in distraction-affected crashes. During such time period, 15 percent of police-reported traffic crashes expressly included driver distraction as a cause of the event. However, the National Highway Traffic Safety Administration’s (NHTSA) National Center for Statistics and Analysis (NCSA) warns that the true number of deaths and injuries caused by distracted driving is likely much higher due to the likelihood of the underreporting of such distracted driving causing collisions.

For example, it is easy for people to justify reading a text message while driving because they fail to realize the significance of what can occur in only a few seconds of distraction. Understanding the calculation that one mile per hour equals 1.467 feet per second helps put the actual danger in perspective. If you are driving at 50 miles per hour, you are traveling nearly 75 feet per second (73.35 feet exactly). Accordingly, in the two seconds it might take one to read a relatively short text, you are traveling nearly 150 feet or 50 yards at such speed. During such time, many unexpected things can occur, such as you can inadvertently leave your lane of travel, a car can start pulling out in front of you, or a pedestrian, including a child, can walk out in front of you.

Texting while driving and other uses of cell phones or electronic devices that require the device be held and information to be read or input by hand are among the most high risk and prevalent actions occurring in the seconds leading up to a vehicular crash. Studies reveal that while drivers of all ages are significantly distracted by such actions, teen drivers are even more likely to be involved in fatal crashes in which such distractions were a contributing factor due to their inexperience and lack of driving skills as well as their greater propensity for risk-taking. For such reasons, nearly all states have adopted statutes making texting while driving illegal and subject to fines and even other potential criminal punishments for crashes causing death or for repeat offenders. Indeed, as of April 2022, 48 states and the District of Columbia have adopted the laws that prohibit the sending and/or reading of a text message while driving. A recent report by the Governors Highway Safety Association (GHSA) addresses suggestions for combating distracted driving. One of the main suggestions include high visibility enforcement of state and local distracted driving laws. Accordingly, drivers should expect such laws to be enforced even more often and consistently in the future.

Ohio, Pennsylvania, and West Virginia are among the states that have adopted laws making it a misdemeanor to send and/or read a text message while driving. West Virginia’s law appears to be not only the most updated but the most prohibitive–banning not only texting and other data sending or retrieval but even telephone calls unless the call can be made hands free. W.Va.Code § 17C-14-15, the original version of which was initially effective on June 8, 2012, currently provides with recent amendments effective on June 9, 2023, in relevant part:

(d) A driver shall exercise due care in operating a motor vehicle on the highways of this state and shall not engage in any actions involving any stand-alone electronic device or wireless telecommunications device that distracts such driver from the safe operation of the vehicle.

(e) While operating a motor vehicle on any street, highway, or property open to the public for vehicular traffic in this state, no driver may:

(1) Physically hold or support, with any part of his or her body, a wireless communication device or stand-alone electronic device: Provided, That such prohibition shall not apply to the wearing of a smartwatch;

(2) Write, send, or read any text-based communication including, but not limited to, a text message, instant message, e-mail, or social media interaction on a wireless telecommunications device or stand-alone electronic device: Provided, That such prohibition shall not apply to a voice-operated or hands-free communication feature which is automatically converted by such device to be sent as a message in a written form;

(3) Make any communication involving a wireless telecommunications device, including a phone call, voice message, or one-way voice communication: Provided, That such prohibition shall not apply to a voice operated or hands-free communication feature or function;

(4) Engage in any form of electronic data retrieval or electronic data communication on a wireless telecommunications device or stand-alone electronic device;

(5) Manually enter letters, numbers, or symbols into any website, search engine, or application on a wireless telecommunications device or stand-alone electronic device;

(6) Watch a video or movie on a wireless telecommunications device or standalone electronic device other than watching data related to the navigation of such vehicle;

(7) Record, post, send, or broadcast video, including a video conference on a wireless telecommunications device or stand-alone electronic device: Provided, That such prohibition does not apply to electronic devices used for the sole purpose of continuously recording or broadcasting video within or outside of the motor vehicle; or

(8) Actively play any game on a wireless telecommunications device or stand-alone electronic device.

The fines and other punishment also increase with each violation that occurs within a 24-month period from the last violation. Additionally, jail time may be imposed if the distracted driving causes a crash resulting in property damage or serious personal injury. And, should such a violation result in death, a driver may be charged and punished for negligent homicide.[1]

(h) It is a misdemeanor for any driver to violate any of the provisions of this section. Every driver convicted of a misdemeanor for a violation of any of the provisions of this section shall be punished as follows:

(1) For a first conviction with no prior conviction of and no plea of no contest accepted to a charge of violating this section within the previous 24-month period, as measured from the date of any prior conviction or plea, a fine of not more than $100;

(2) For a second conviction within a 24-month period, as measured from the date of any prior conviction or plea, a fine of not more than $200;

(3) For a third or subsequent conviction within a 24-month period, as measured from the date of any prior conviction or plea:

(A) A fine of not more than $350;

(B) Three points on the driver’s record maintained by the Division of Motor Vehicles; and

(4) Any driver who causes physical harm to property as the proximate result of committing a violation of this section is guilty of a misdemeanor punishable up to 30 days in jail or a fine not less than $100 and not more than $500;

(5) Any driver who causes serious physical harm to another person as the proximate result of committing a violation of this section is guilty of a misdemeanor and shall be fined not less than $500 nor more than $1,000, or confined in jail up to 120 days, or both fined and confined, and such driver shall have his or her license to operate a motor vehicle revoked by the Commissioner of the Division of Motor Vehicles for a period of one year; and

(6) Any driver who causes the death of another as the proximate result of committing a violation of this section is guilty of negligent homicide and shall be punished in accordance with § 17C-5-1 of this code.

The relevant motor vehicle statutes in Pennsylvania and Ohio are both less prohibitive in scope and punishment. In Pennsylvania, 75 Pa.C.S.A. § 3316(a) has provided since March 2012 that “[n]o driver shall operate a motor vehicle on a highway or trafficway in this Commonwealth while using an interactive wireless communication device to send, read, or write a text-based communication while the vehicle is in motion. A person does not send, read or write a text-based communication when the person reads, selects or enters a telephone number or name in an interactive wireless communications device for the purpose of activating or deactivating a voice communication or a telephone call.” The statute further provides that a “’text-based communication’ means a text message, instant message, electronic mail or other written communication composed or received on an interactive wireless communication device.” 75 Pa.C.S.A. § 3316(f). “A person who violates [the law] commits a summary offense and shall, upon conviction, be sentenced to pay a fine of $50.” 75 Pa.C.S.A. § 3316(d).[2]

Ohio’s relevant statute, R.C. § 4511.204, which was initially effective on August 31, 2012, and which has been amended on several occasions with the most recent amendment becoming effective on April 4, 2023, appears at first blush to be very prohibitive: “No person shall operate a motor vehicle, trackless trolley, or streetcar on any street, highway, or property open to the public for vehicular traffic while using, holding, or physically supporting with any part of the person’s body an electronic wireless communications device.” R.C. § 4511.204(A). However, subsection (B) contains many exceptions that essentially establish that the law only effectively prohibits texting or emailing while driving or phone calls that require the driver to manually enter letters, numbers, or symbols into the device for non-emergency purposes while driving:

(B) Division (A) of this section does not apply to any of the following:

(1) A person using an electronic wireless communications device to make contact, for emergency purposes, with a law enforcement agency, hospital or health care provider, fire department, or other similar emergency agency or entity;

(2) A person driving a public safety vehicle while using an electronic wireless communications device in the course of the person’s duties;

(3) A person using an electronic wireless communications device when the person’s motor vehicle is in a stationary position and is outside a lane of travel, at a traffic control signal that is currently directing traffic to stop, or parked on a road or highway due to an emergency or road closure;

(4) A person using and holding an electronic wireless communications device directly near the person’s ear for the purpose of making, receiving, or conducting a telephone call, provided that the person does not manually enter letters, numbers, or symbols into the device;

(5) A person receiving wireless messages on an electronic wireless communications device regarding the operation or navigation of a motor vehicle; safety-related information, including emergency, traffic, or weather alerts; or data used primarily by the motor vehicle, provided that the person does not hold or support the device with any part of the person’s body;

(6) A person using the speaker phone function of the electronic wireless communications device, provided that the person does not hold or support the device with any part of the person’s body;

(7) A person using an electronic wireless communications device for navigation purposes, provided that the person does not do either of the following during the use:

(a) Manually enter letters, numbers, or symbols into the device;

(b) Hold or support the device with any part of the person’s body;

(8) A person using a feature or function of the electronic wireless communications device with a single touch or single swipe, provided that the person does not do either of the following during the use:

(a) Manually enter letters, numbers, or symbols into the device;

(b) Hold or support the device with any part of the person’s body;

(9) A person operating a commercial truck while using a mobile data terminal that transmits and receives data;

(10) A person operating a utility service vehicle or a vehicle for or on behalf of a utility, if the person is acting in response to an emergency, power outage, or circumstance that affects the health or safety of individuals;

(11) A person using an electronic wireless communications device in conjunction with a voice-operated or hands-free feature or function of the vehicle or of the device without the use of either hand except to activate, deactivate, or initiate the feature or function with a single touch or swipe, provided the person does not hold or support the device with any part of the person’s body;

(12) A person using technology that physically or electronically integrates the device into the motor vehicle, provided that the person does not do either of the following during the use:

(a) Manually enter letters, numbers, or symbols into the device;

(b) Hold or support the device with any part of the person’s body.

(13) A person storing an electronic wireless communications device in a holster, harness, or article of clothing on the person’s body.

However, the punishment for committing a violation is more severe than that in Pennsylvania.[3]

(D)(1) Whoever violates division (A) of this section is guilty of operating a motor vehicle while using an electronic wireless communication device, an unclassified misdemeanor.

(a) Except as provided in divisions (D)(1)(b), (c), (d), and (2) of this section, the court shall impose upon the offender a fine of not more than one hundred fifty dollars.

(b) If, within two years of the violation, the offender has been convicted of or pleaded guilty to one prior violation of this section or a substantially equivalent municipal ordinance, the court shall impose upon the offender a fine of not more than two hundred fifty dollars.

(c) If, within two years of the violation, the offender has been convicted of or pleaded guilty to two or more prior violations of this section or a substantially equivalent municipal ordinance, the court shall impose upon the offender a fine of not more than five hundred dollars. The court also may impose a suspension of the offender’s driver’s license, commercial driver’s license, temporary instruction permit, probationary license, or nonresident operating privilege for ninety days.

(d) Notwithstanding divisions (D)(1)(a) to (c) of this section, if the offender was operating the motor vehicle at the time of the violation in a construction zone where a sign was posted in accordance with section 4511.98 of the Revised Code, the court, in addition to all other penalties provided by law, shall impose upon the offender a fine of two times the amount imposed for the violation under division (D)(1)(a), (b), or (c) of this section, as applicable.

(2) In lieu of payment of the fine of one hundred fifty dollars under division (D)(1)(a) of this section and the assessment of points under division (D)(4) of this section, the offender instead may elect to attend the distracted driving safety course, as described in section 4511.991 of the Revised Code. If the offender attends and successfully completes the course, the offender shall be issued written evidence that the offender successfully completed the course. The offender shall not be required to pay the fine and shall not have the points assessed against that offender’s driver’s license if the offender submits the written evidence to the court.

(3) The court may impose any other penalty authorized under sections 2929.21 to 2929.28 of the Revised Code. However, the court shall not impose a fine or a suspension not otherwise specified in division (D)(1) of this section. The court also shall not impose a jail term or community residential sanction.

(4) Except as provided in division (D)(2) of this section, points shall be assessed for a violation of division (A) of this section in accordance with section 4510.036 of the Revised Code.

(5) The offense established under this section is a strict liability offense and section 2901.20 of the Revised Code does not apply. The designation of this offense as a strict liability offense shall not be construed to imply that any other offense, for which there is no specified degree of culpability, is not a strict liability offense.

Hopefully, the above statistics, speed and distance calculations, and criminal laws demonstrate the dangers inherent in permitting oneself to be distracted while driving by the use of an electronic device, including a cell phone, to receive or send text messages or even to make a telephone call that is not completely hands-free in nature. As a society, we all need to do a better job in teaching our children and each other as to the dangers inherent in such activity. And, in doing so, we all must practice what we preach. Indeed, as parents, we must refrain from using the admonition “do as I say, not as I do.” If the need to send or read a text message occurs when you are driving it is easy enough to pull over to safely accomplish this task (or to have a passenger in the car read or send the message for you), especially when doing so could save a life, perhaps even your own or that of someone you love.

[1] While unlike West Virginia’s relevant Statute, those of Pennsylvania and Ohio do not mention the possibility of being charged with negligent homicide or vehicular manslaughter, it is entirely consistent with such laws that one may be charged for such crimes if one’s distracted driving resulted in a death and otherwise meets the threshold requirements under such laws for recklessness or similar heightened or egregious behavior.

[2] Pennsylvania’s Statute supersedes and preempts any local or municipal ordinance that provides greater punishment than that provided by the State law. 75 Pa.C.S.A. § 3316(e).

[3] Ohio’s Statute, unlike that in Pennsylvania, does not supersede and preempt any substantially equivalent municipal ordinance that provides greater penalties than does the State law. R.C. § 4511.204(E).