APPELLATE COURT SHINES SOME LIGHT ON USING CELL PHONES WHILE DRIVING IN CONNECTICUT

It is against the law to text while driving in Connecticut and also against the law to talk on a cell phone while driving by holding the phone in one’s hand. Most states have similar laws and they are probably a good idea. Connecticut’s statute is Conn. Gen. Stat. Sec. 14-296aa. It is not a very clear statute and because cell phone tickets are not usually worth trying and then appealing, courts have not interpreted and clarified the statute (a cell phone ticket is an infraction, which can be tried first before a magistrate, appealed for a new trial before the Superior Court and then appealed to the Appellate Court). Recently however, the case of State v. Dunbar reached the Appellate Court. The defendant was ticketed for using his hand to answer his phone even though he did not hold it to his ear. The magistrate and trial judge both held that Mr. Dunbar violated the law.

The statute prohibits using a hand-held phone to engage in a call which it defines as talking into or listening to a phone but does not include holding the phone to “activate, deactivate or initiate a function of such telephone.” Presumably this means that one can answer a call and then switch to headset or speaker. The statute however further prohibits using “mobile electronic devices” (which includes a device that transmits or receives data but excludes navigation devices). This is the texting/emailing part of the statute. It can be confusing because phones also contain other electronic functions and can also be classified as mobile electronic devices and phones at the same time, so that activating a headset or silencing a call would still violate the law because it is a use of an electronic device. In practice, drivers have been receiving tickets for really any use of the hands on a phone while driving (actually operating; talking or texting while stopped in traffic is still a violation).

Mr. Dunbar (who represented himself on appeal) pressed a button to answer a call and talk on his headset. The court held that did not violate the statute because answering the phone was not the same as engaging in a call. Also notable was that the court opined that the “mobile electronic device” part of the statute did not apply because although a phone could fit that definition, it was not being used a something other than a phone in this case and the State did not prosecute it that way. The opinion suggests that the State would have to demonstrate that a driver was using one of the electronic, non-call features of the phone in order to earn a conviction on that part of the statute.

While the Dunbar case provided some much-needed clarification, there are still many questions. One such question is whether, when the phone is plugged into the radio or car speakers to play music, is touching the phone to change the song or increase the volume a violation? On one hand, that is no different than changing a radio station. On the other, it is a function of a mobile electronic device. Then again, the statute excepts audio equipment that can provide entertainment for backseat passengers. Do you need passengers to do that or are speakers to the backseat enough?

For safety and legal reasons, try not to test what you can do with your phones while driving. If you do however get ticketed, call me–when you get home–and we’ll see what we can do about it.