Bercik Law Blog

Distracted Driving Tickets: Cell phone talking or texting while driving.

Distracted Driving and Cell Phone Use: The Law In New Jerseydistracted driving - texting while driving - cell phone - berciklaw.com

New Jersey’s distracted driving cell phone law specifically forbids the use of a wireless telephone or electronic communication device by the operator of a moving motor vehicle on a public road or highway.  Penalties include a minimum fine of $200 and a maximum fine of $800 for repeat offenders.  Third offenders can face three motor vehicle points and a 90-day suspension of their license.

Can I Ever Use My Cell Phone in a Car?

The only stated exception to the ban on the distracted driving use of cell phones is when the phone is a hands-free wireless telephone or when the phone is used hands free.

A hands-free wireless phone is defined by the statute as one that has an internal feature, or is equipped with an external attachment, by which the user engages in a conversation without the use of either hand.  Most interestingly, the statute allows for “the use of either hand to activate, deactivate, or initiate a function of the telephone.”

Is Cellphone in My Hand allowed under the Distracted Driving law?

The passage in the statute which allows for the use of “either hand” to activate a function has caused considerable confusion in the courts.  One court, in an unpublished opinion (and, therefore, not binding on other courts) has interpreted the language to allow someone to actually hold the phone in their hand and dial a number.  However, since dialing the phone is even more distracting than holding it to the side of your head and speaking, it is safe to say that the unpublished opinion is not well reasoned.  In law, no statute can be interpreted to allow conduct at least as distracting as the conduct the statute seeks to prevent.  Understandably, the unpublished opinion remains a less than persuasive interpretation of the distracted driving statute.

A more reasonable interpretation of the distracted driving cell phone statute’s language is that you can use one hand to activate a function – the term “function” being defined more broadly as the activation of automatic redial, last number recall, caller ID, speakerphone, hands-free capabilities, or speed dialing.  The actual dialing of a full phone number would not be considered a function but, instead, an action within a function and, therefore, prohibited.

The Best Way to Use the Phone in the Car to avoid a Distracted Driving ticket.

Practically speaking, if an officer sees a cell phone in your hand and you happen to be looking at it, you’re going to get a ticket.  This is especially true since prohibited use extends beyond talking and texting and includes actions like using the GPS or even checking the time.  It will then be up to the defense to attempt to argue that a proper use of either hand was limited to engaging a “function.”

Therefore, if you wish to avoid some pricey penalties, motor vehicle points, and even a license suspension, place the phone in a dashboard mounted holder specifically designed for that purpose and do not remove it until it is time to leave the vehicle.  Operate all functions the same way you would operate other items on your car’s dashboard. With the phone properly mounted on the dash, you will be able to use the phone and, in most cases, remain well within the confines of the cell phone and distracted driving laws.


Click here to learn more about Distracted Driving Tickets and how Bercik Law can help.

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