On July 1, 2008, police officers will begin citing drivers for using wireless cell phones that do not operate “hands free,” forcing many California drivers to become familiar with new telephone technology. Businesses, and particularly businesses that employ young people, will need to adopt new policies for their employees who drive vehicles. Violating drivers will not only be required to pay fines, but may be held responsible to pay damages to people injured in automobile accidents, regardless of actual fault.
Governor Schwarzenegger signed the new “hands free” cell phone law in September of 2006. Its effective date was delayed to July 1 of 2008 to give California drivers time to become aware of the law and prepare for the change. Still, many Californians are expected to wait until the last moment before buying and learning how to use “hands free” telephone equipment. Similarly, many businesses may delay adopting a company policy regarding this new safety law.
Sections 23123 and 23124 of the CALIFORNIA VEHICLE CODE prohibit drivers from using a wireless telephone while operating a motor vehicle unless the driver uses a telephone that is designed and configured to be “hands free.” Drivers who violate the law will face a $20 fine for the first violation and a $50 fine for each time thereafter. Drivers are allowed to use a wireless telephone for emergency purposes. Drivers of certain commercial trucks and farm vehicles may use push-to-talk telephones until July 1, 2011. Emergency response vehicle drivers are exempt from this law. The law also forbids young people under age 18 from using any mobile device (including a pager or texting phone) while driving. California is not breaking new ground with this “hands free” cell phone law. Connecticut, New Jersey and New York have enacted similar laws in response to the growing use of cell phones in vehicles and accidents involving drivers’ cell phone distractions.
Risks and Penalties
The new law does not allow a peace officer to stop a driver under age 18 only to check if they are using a mobile device. However, a peace officer may stop an adult driver for no other reason than suspecting that the driver may be violating the law – even if the driver is otherwise driving safely. This low threshold reason is significant because when a driver is stopped, the peace officer speaks with the driver and can observe the driver, other persons and objects in the car. Whether considered good or bad, searches for other purposes will be more available to law enforcement if a driver is suspected of violating the new cell phone law.
Drivers who violate the cell phone law and are in an accident will be exposed to much more than a $20 fine. If they are on the job at the time of the accident, their employer may also be exposed. This is because of the long-established legal principle of “negligence per se.” Lawyers use this principle as a shortcut to establish liability and win damages for injured persons in accidents. “Negligence per se” means that if a driver is illegally using a cell phone when an accident occurs, even if otherwise driving well, he or she is much more likely to be found responsible for the accident. This is because the cell phone law is a safety law designed to eliminate distractions and thereby prevent accidents. Depending on the extent of the injuries, this financial risk could be very substantial. If the cited driver has violated the cell phone law before, significant punitive damages may also apply. If the violating driver was on the job, their employer may be held liable as well. A wave of civil litigation is expected to follow the new cell phone law when it becomes effective on July 1.
What You Can Do.
Individuals: It would be smart to purchase cell phones and/or devices that will allow you to comply with the new cell phone law now. “Hands free” cell phone technology has advanced significantly and entrepreneurial companies see the opportunity to help Californians to comply with this new law. Even with “user friendly” cell phones and cell phone devices, getting familiar with any new piece of equipment takes some time before it becomes “second nature.” The new technology is easy to use, but don’t wait until July 1 to check it out. Give yourself a little time to make a good decision about what product to purchase and to become familiar with how it works.
Businesses: Because of the risk to employers, businesses should adopt a policy before July 1, 2008 that requires strict compliance with the new “hands free” cell phone law by all employees. For most employers, the best policy would be to instruct their employees not to use cell phones while driving and to let incoming calls go to voicemail to be returned outside of the car in a safe area. If your business issues cell phones to its employees, or necessarily requires the use of a cell phone by its employees, make sure that the cell phones can be used “hands free.” Note that a cell phone that has a speaker phone function only will not comply with the law. Employers who hire employees under age 18 should prohibit their use of a cell phone in a car. These instructions should be in writing and be acknowledged by each employee. Employers should not tolerate any departure from the company policy.
Preparing for and complying with the new “hands free” cell phone law has many benefits, not the least of which is driving with less distractions and creating a safer California.