HomeMy WebLinkAboutFinally Adopt Ordinance No. 1818, infraction for cell phone use while driving1
Commission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Ron Price, Chief of Police
Greg Sullivan, City Attorney
SUBJECT: Final Adoption of Ordinance No. 1818 – Providing for a Municipal Infraction of $100 for use of a hand-held electronic device while operating a vehicle.
MEETING DATE: November 28, 2011
AGENDA ITEM TYPE: Consent
RECOMMENDATION: Review Ordinance 1818 for amendments based on Commission motions made at provisional adoption on November 14rh and finally adopt Ordinance No. 1818.
BACKGROUND: The Commission previously considered and discussed this issue on
January 31, 2011 and again on October 3, 2011. At the meeting on November 14, 2011 the
Commission provisionally adopted this ordinance upon the following motions: Main Motion: It was moved by Cr. Mehl, seconded by Cr. Andrus to provisionally adopt
Ordinance No. 1818, providing for a municipal infraction of $100 for use of a hand-held
electronic device while operating a motor vehicle. The motion with the following amendments passed 4-1 with Mayor Krauss opposed.
• Amendment: It was moved by Cr. Becker, seconded by Cr. Mehl to amend
Ordinance No. 1818, adding to section 1.D an item 7 to exclude Interstate 90. The
motion passed 5-0.
• Amendment: It was moved by Cr. Becker, seconded by Cr. Mehl to amend Ordinance No. 1818, to allow the touching of “Bluetooth” devices to be legal and instructing the staff to incorporate language to provide for lawful use of a
“Bluetooth” or other hands-free or wired device. The motion passed 4-1 with Cr.
Andrus opposed.
• Amendment: It was moved by Cr. Mehl, seconded by Cr. Taylor to amend Ordinance No. 1818, to change the effective date to January 17, 2012 or thirty (30)
days after final adoption, whichever is later. The motion passed 5-0.
• Amendment: It was moved by Cr. Mehl, seconded by Cr. Andrus to require a report back in one year to the Commission on the effectiveness of the ordinance. The motion passed 5-0.
The version of the ordinance provided as an attachment to this staff memorandum reflects the
motions as made above. You will see all the changes made reflected in the attached ordinance in underline and yellow highlights.
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For further background related to the ordinance we provide as an attachment the staff
memorandums from the October 3, 2011 policy discussion and the November 14, 2011 hearing
on provisional adoption.
We will provide a clean copy of the Ordinance (without the underlined and highlighted sections but showing all applicable changes) to the Clerk for the Mayor’s signature.
ALTERNATIVES: As suggested by the City Commission.
FISCAL EFFECTS: The addition of every regulation requires additional time commitment from staff yet we believe that at this time no additional personnel will be needed to enforce this
ordinance ass the additional workload will be subsumed by existing staff. An education
campaign associated with the adoption of this ordinance will require allocation of police
resources but should not result in any additional departmental expenditure unless the City implements an advertising campaign or installs wayfarer signage at the primary entrances to the City.
The City will send unpaid citations to collections per the existing contract. Those seeking to
challenge the issuance of a citation may appeal the citation to Municipal Court; at that time, City resources will be consumed to defend and try the citation.
UNRESOLVED ISSUES: None identified.
Attachments:
• Ordinance No. 1818, Final Adoption (showing Commission changes and staff suggested changes).
• Staff Memorandum from October 3, 2011, distracted driving policy discussion (without attachments)
• Staff Memorandum from November 14, 2011, action item on provisional adoption (without attachments). Report compiled on: November 18, 2011.
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Ordinance 1818
Page 1 of 4
ORDINANCE 1818
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, PROHIBITING THE
USE OF HAND HELD ELECTRONIC COMMUNICATIONS
DEVICES WHILE OPERATING A MOTOR VEHICLE.
WHEREAS, the regulations regarding motor vehicles and traffic are found at Chapter 36 of the Bozeman Municipal Code; and
WHEREAS, the use of mobile telephones and other electronic communications devices
while operating a motor vehicle presents an unacceptable risk to the driving public by creating a
driving distraction.
NOW, THEREFORE, BE IT ORDAINED by the City Commission of the City of Bozeman, Montana, as follows:
Section 1
That a new section of the Bozeman Municipal Code is hereby added to read as follows:
“36.03.275. Electronic communications device usage while driving prohibited; municipal
infraction penalty.
A. No person shall use or have in their immediate physical possession a hand held electronic
communication device while operating a motor vehicle, motorcycle, quadricycle, or a
bicycle on a public highway as defined in Sect. 61-1-102(27), MCA, within the City
limits.
B. “Hand held electronic communications device” includes wireless or cellular phones, Blackberries, smart phones, i-phones, laptop and notebook computers utilizing VOIP
(voice over internet protocol) technology, navigational systems, and any other mobile
communications device that uses short-wave analog or digital radio transmissions
between the device and a transmitter to permit wireless communications to and from the
user of the device. C. “Immediate physical possession” means touching the hand held electronic
communications device, or physically holding the device in one’s hand or up to one’s ear.
Simply having the electronic communications device on one’s person or in a motor
vehicle does not constitute immediate physical possession.
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Ordinance 1818
Page 2 of 4
D. Exceptions: 1. This provision section shall not apply to any person reporting a health, fire, safety,
or police emergency.
2. This provision section shall not apply to governmental fire agencies, ambulance
services, law enforcement agencies, emergency responders, or any person operating an “Authorized Emergency Vehicle” as defined in Sect. 61-8-102(2)(a), MCA while in the performance and scope of their work related duties.
3. This provision section shall not apply to passengers in a motor vehicle, or persons
using a hand held electronic communications device while maintaining a motor
vehicle in a stationary position, not in gear, while in a parking lane or space out of moving traffic lanes. 4. This provision section shall not apply to persons using a “hands free device.” A
“hands free device” is an external device, such as a “Bluetooth” device, that
connects to a wireless telephone, wireless communications device or electronic
communications device that allows use of the device without touching the telephone or wireless or electronic communications device with one’s hand, and includes voice-activated technologies that can be utilized without touching the
device. Use of a hands free device is permitted while operating a motor vehicle
provided the driver does not touch the wireless telephone or wireless or electronic
communications device with one’s hand while operating a motor vehicle. A “hands free device” shall mean an electronic communication device that has an internal feature or function, or that is equipped with an attachment or addition by
which a user engages the device and by which the continual or repeated use of
either hand is not required to activate, deactivate, initiate, or maintain a function
of the device. A hands free device does not include a device where touching the device is necessary to dial a phone number or enter text. Use of a device’s internal speaker alone does not constitute a hands free device.
5. This provision section does not apply to drivers using two-way radios while in the
performance and scope of their work-related duties.
6. This provision section shall not apply to drivers holding a valid amateur radio operator license issued by the Federal Communications Commission while using a two-way radio.
7. This section shall not apply to a driver operating a motor vehicle or motorcycle on
all portions of Interstate 90 considered controlled access including the entirety of
the exit and entrance ramps. E. Violation; Penalty: A person who violates this section shall be deemed to have committed a municipal infraction, a civil offense, and for each violation a civil penalty of
$100.00 shall be imposed.
Section 2
Repealer.
All provisions of the ordinances of the City of Bozeman in conflict with the provisions of this ordinance are, and the same are hereby, repealed and all other provisions of the ordinances
of the City of Bozeman not in conflict with the provisions of this ordinance shall remain in full
force and effect.
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Ordinance 1818
Page 3 of 4
Section 3
Savings Provision.
This ordinance does not affect the rights and duties that matured, penalties that were
incurred or proceedings that were begun before the effective date of this ordinance. All other
provisions of the Bozeman Municipal Code not amended by this Ordinance shall remain in full
force and effect.
Section 4
Severability.
That should any sentence, paragraph, subdivision, clause, phrase or section of this
ordinance be adjudged or held to be unconstitutional, illegal, or invalid, the same shall not affect the validity of this ordinance as a whole, or any part or provision thereof, other than the part so decided to be invalid, illegal or unconstitutional, and shall not affect the validity of the Bozeman
Municipal Code as a whole.
Section 5 Codification Instruction.
The provisions of Sections 1 shall be codified at 36.03.280. All other existing sections of
Chapter 38, Art. 3, Division 2 shall remain in effect and be renumbered accordingly.
Section 6
Report to Commission.
No later than one year after the effective date the City Manager shall report to the
Commission on the effectiveness of this Ordinance.
Section 7
Effective Date.
This ordinance shall be in full force and effect 30 (thirty) days after second reading and
final adoption on January 17, 2012.
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Ordinance 1818
Page 4 of 4
PROVISIONALLY ADOPTED by the City Commission of the City of Bozeman,
Montana, on first reading at a regular session thereof held on the 14th day of November, 2011.
____________________________________
JEFFREY K. KRAUSS
Mayor
ATTEST:
_______________________________
STACY ULMEN, CMC
City Clerk
FINALLY PASSED, ADOPTED AND APPROVED by the City Commission of the
City of Bozeman, Montana on second reading at a regular session thereof held on the 28th day of
November, 2011. The effective date of this ordinance is the 17th day of January, 2012.
__________________________________________
JEFFREY K. KRAUSS
Mayor
ATTEST:
_______________________________
STACY ULMEN, CMC City Clerk
APPROVED AS TO FORM:
__________________________________________
GREG SULLIVAN
City Attorney
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Commission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Ron Price, Chief of Police
Dave McManis, Patrol Lieutenant
SUBJECT: Distracted Driving
MEETING DATE: October 3, 2011
AGENDA ITEM TYPE: Policy Discussion
RECOMMENDATION: Discuss issues surrounding distracted driving and the potential of
an ordinance restricting cellular phone use. Provide direction to staff for future action as
applicable.
RECOMMENDED MOTION: No motion is necessary. This is a policy discussion that
requires no formal action by the City Commission.
BACKGROUND: In February 2010 The City of Bozeman 2010-2011 Work Plan was adopted
and included a new policy initiative to “adopt an ordinance requiring all drivers to use hands-free
devices while using their cellular phones and to prohibit texting while driving.” The issue was
again placed on the 2011-2012 Work Plan as a 2nd Tier Initiative under the title of “Distracted
Driver Ordinance.”
During discussion of the 2011-2012 Work Plan, members of the commission directed the staff to
survey and collect local data relating to reported cell phone use as the Bozeman Police
Department investigated vehicle accidents. In addition, members of the Commission requested
information as to the experiences of other Montana cities that have enacted ordinances that
restrict cell phone use while driving.
Municipal Ordinances
The City of Missoula enacted an ordinance in 2009 that prohibits texting while driving. There
have been less than 20 citations issued during that time and police officials stated that it is
seldom enforced in great part due to the burdensome process of subpoenaing phone/text records.
Ordinances in the cities of Whitefish, Butte-Silver Bow and Billings each contain very similar
language. They prohibit the use (or actual physical possession) of a hand-held communication
device while operating a vehicle. There are exceptions for persons reporting emergencies,
authorized emergency vehicles, two-way radios and vehicles that are stopped and not in gear.
The City of Billings Ordinance No. 10-5521, USE OF ELECTRONIC COMMUNICATIONS
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DEVICES WHILE OPERATING A MOTOR VEHICLE, is attached as a representative sample of
ordinance language.
Below we provide a summary of the experiences of those three Montana communities that have
adopted similar restrictions:
Billings: The ordinance passed without significant controversy and has worked smoothly. It
became effective in November, 2010 and since that time they have issued 322 citations and 94
warnings. Violations of this ordinance result in a civil penalty of $110. None of the citations
have been contested.
Butte-Silver Bow: This ordinance was enacted in May, 2011. During the first month the
department issued 40 warnings. As of this date the department has issued six (6) citations.
Violators of this ordinance are subject to a criminal conviction and a fine in the amount of $100.
Whitefish: No enforcement action has taken place and the ordinance is not effective until
September 20, 2011. Violations result in a civil penalty of not more than $100 for the first
offense and not more than $300 for all repeat violations.
Bozeman Traffic Study
Officers of the Bozeman Police Department collected information pertaining to potential
contributing factors in all reported accidents that occurred between February 1, 2011 and July 1,
2011. As part of their investigation, officers interviewed drivers and witnesses about causative
factors and potential distractions including whether a cell phone was in use at the time of the
accident.
During the above time period officers responded to 558 reports of vehicle accidents. Driver
carelessness was the single largest contributing factor (157) with unsafe backing being chief
among them. Failure to Yield Right of Way (56) and Weather Conditions (56) were other
significant contributors. Twenty (20) of the accidents resulted in arrests for Driving Under the
Influence (DUI).
During this study period there were twelve (12) instances where drivers were either talking
on cell phones or were looking at them at the time of the accident. In two (2) of the cases
the driver on the phone was identified as the non-fault driver.
“Other Driver Distraction” was identified as a contributing factor in 29 of the accidents. These
distractions included: reaching for item on seat or floor (9); other electronics (5); preparing to
eat or drink (4); passengers (3); children (2); and others.
Research
In December 2010 I presented a memo to the commission that contained an overview of current
research data as it pertains to cell phone use and distracted driving. The memo examined the
body of research on distracted driving and presented a synopsis of some of the commonalities
that were found.
In July 2011the Governors Highway Safety Administration released the report, Distracted
Driving: What Research Shows and What States Can Do. This report “reviews and summarizes
distracted driving research…to inform states and other organizations as they consider distracted
driving countermeasures.”
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The memo and the executive summary of the report are attached for review and reference.
The issue of distracted driving, specifically cell phone use, has been part of the City of Bozeman
Work Plan for the previous two years. At this time, and with the additional information
provided, staff is requesting guidance on this policy decision.
FISCAL EFFECTS: Although implementation of a Municipal Ordinance may have financial
implications for the City and the community, this discussion phase has no immediate fiscal
effect.
ALTERNATIVES: As suggested by the City Commission.
Attachments: Memo to the City Commission, dated December 14, 2010
Distracted Driving: What Research Shows and What States Can Do
City of Billings Ordinance No. 10-5521
Report compiled on: September 9, 2011
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BOZEMAN POLICE DEPARTMENT
RON PRICE, CHIEF OF POLICE
615 SOUTH 16TH AVE
BOZEMAN, MONTANA 59715
(406) 582-2010
M E M O R A N D U M
TO: HONORABLE MAYOR AND CITY COMMISSION
FROM: RON PRICE
RE: CELL PHONE ORDINANCE
DATE: DECEMBER 14, 2010
In February 2010 The City of Bozeman 2010-2011 Work Plan was adopted and
included a new policy initiative to “adopt an ordinance requiring all drivers to use
hands-free devices while using their cellular phones and to prohibit texting while
driving”. To date there has not been a policy discussion as it relates to this
initiative. The intent of this memo is to provide a level of information and research
data as it pertains to cell phone use and distracted driving.
During 2009, cell phone distractions while driving hit our nation’s political and
media agendas. Webster’s Dictionary named “distracted driving” it’s Word of the
Year. Driver cell phone use has become symbolic of driver distraction—or arguably
even of traffic safety in the eyes of the public. The call for legislative intervention,
usually in the form of ordinances prohibiting use, continues to be raised. Currently
there are nine states that ban the use of hand-held cell phones while driving.
Additionally, use of cell phones by novice drivers is restricted in 28 states and the
District of Columbia.
There is an ever-growing body of research as it relates to cell phone use and
distracted driving. There is some level of commonality found among the literature.
It is generally accepted that a driver using a cell phone while driving is four times
more likely to be involved in a traffic collision. Essential driving skills are degraded,
including slower reaction time, diminished hazard perception and erratic lane
positioning.1 Even though virtually all existing cell phone ordinances speak to
1 Caird, J. K., Scialfa, C. T., Ho, G., & Smiley, A. (2005). A meta-analysis of driving performance and crash risk
associated with the use of cellular telephones while driving.
http://www.nsc.org/news_resources/Resources/Documents/A meta-analysis of driving performance and crash risk
associated with the use of cellular telephones while driving.pdf
20025
hand-held devices, numerous studies have shown that there is no significant
difference between using a hands-free or a hand-held cell phone.2
There is less data as it relates specifically to ordinances and their effectiveness at
addressing distracted driving issues. The most significant research was published
in December 2009 and examined collision claims and how those numbers were
affected in jurisdictions that had enacted laws banning hand-held cell phone use.
The research indicated that there was no indication of a decrease in crash risk when
hand-held cell phone laws were enacted. An examination of the control states
without laws had collision claim trends that were the same as those which had
enacted hand-held bans. 3
The State of Washington was one of the first to enact a law addressing the use of
hand-held cell phones. The Washington Traffic Safety Commission indicated that
prior to the law, visual counts revealed cell phone use rates of approximately 6%.
Shortly after the ban the rates were reduced to 4.5% and within several months
had climbed back to their original levels. These numbers and trends are consistent
with other state and national surveys4.
Cell phone use is one of many activities that can lead to driver inattention.
Research on distracted driving has indicated that it is often secondary to other
activities such as eating or manipulating radios and other electronics5. There are
existing laws that address distracted driving and improper operation of vehicles.
These include careless driving, improper lane travel, and speed violations, to name
only a few. These laws currently address the issues and are properly enforced. I
have concerns about regulating only one component of the distracted driving issue
and attempting to do so through an ordinance that is difficult to enforce and not
shown to be effective.
In short, I agree with a senior scientist that gave recommendations on the subject
in a report to the National Highway Traffic Safety Administration. Collect more
data, punish violations of inattentive and reckless driving laws regardless of the
causes of such behavior, and improve driver education.
2 National Safety Council (2010). Understanding the distracted brain: Why driving while using hands-free cell
phones is risky behavior.
http://www.fnal.gov/pub/traffic_safety/files/NSC White Paper - Distracted Driving 3-10.pdf
3 Highway Loss Data Institute (2009). Hand-held cellphone laws and collision claim frequencies.
http://www.schoolbusfleet.com/resources/HLDI-CellPhoneLawStudy.pdf
4 Injury Prevention (2004). Longer term effects of New York State’s law on drivers’ handheld cell phone use.
http://injuryprevention.bmj.com/content/10/1/11.full.pdf
5 Highway Safety Research Center (2004). Distractions in everyday driving.
http://www.nsc.org/safety_road/Distracted_Driving/Documents/Distractions in Everyday Driving.pdf
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Memo to the Commission re: Ordinance 1818- regulating the use of hand held electronic communication devices Page 1 of 7
Commission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Ron Price, Chief of Police
Greg Sullivan, City Attorney SUBJECT: Preliminary adoption of Ordinance 1818 – Providing for a Municipal Infraction of
$100 for use of a hand-held electronic device while operating a motor vehicle.
MEETING DATE: November 14, 2011
AGENDA ITEM TYPE: Action.
RECOMMENDATION: Hold a public hearing and consider provisional adoption of Ordinance 1818.
BACKGROUND: This agenda item resulted from Commission direction at a work session on
distracted driving held October 3, 2011. At that time, the Commission directed us to develop an
ordinance for the Commission’s consideration and also requested we provide information related to several alternatives to addressing distracted driving.
Adoption of local and state regulations addressing cell phone use while driving has increased over the
past decade based on two principles: (i) data demonstrates cell phone use is a distraction1
while driving;
and (ii) studies that show increased distractions lead to a greater risk of traffic accidents. The proposal to adopt such an ordinance in Bozeman follows from the above principles.
In support of the above principles, according to the U.S. Department of Transportation’s National
Highway Traffic Safety Administration 18% of fatalities in distracted-driving-related crashes involved
reports of a cell phone as a distraction.2
1 As defined in the Overview of the National Highway Traffic Safety Administration’s Driver Distraction Program (DOT HS 811 299), “distraction” is a specific type of inattention that occurs when drivers divert their attention from the driving task to
focus on some other activity instead. It is worth noting that distraction is a subset of inattention (which also includes fatigue, physical conditions of the driver, and emotional conditions of the driver). U.S. Department of Transportation’s National
Highway Traffic Safety Administration Traffic Safety Facts Research Note (DOT HS 811 379) at pg. 1 available at
This is clearly a significant number. In 2005, the local Western Transportation Institute of the Montana State University (WTI) conducted a study examining driver
http://www-nrd.nhtsa.dot.gov/Pubs/811379.pdf (last visited November 1, 2011). 2 Id.
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Memo to the Commission re: Ordinance 1818- regulating the use of hand held electronic communication devices Page 2 of 7
performance and situation awareness while subjects accessed the Montana Department of
Transportation’s 511 traveler information system via a cellular telephone.3
WTI’s findings are instructive. WTI found performance on the primary tasks for driving (e.g., lane and
speed maintenance) are unaffected by interacting with a cell phone. However, WTI also found that
“tasks that require more prompt response times (e.g., avoiding collisions during unexpected conflicts)
were degraded by the use of a cell phone, regardless of the type of instrument used” (i.e. “hand held” or “hands free”).” WTI further found that drivers were “less aware of their surroundings when interacting
with the 511 traveler information system while using a cellular phone and driving.”4
There are studies that provide an alternative perspective. In July 2011, the Governor’s Highway Safety
Administration released the report, Distracted Driving: What Research shows and What States Can Do. This report “reviews and summarizes distracted driving research… to inform states and other
organizations as they consider distracted driving countermeasures.” In summary, the limited research on
these countermeasures concludes that laws banning hand-held cell phone use reduced use by about half
when they were first implemented. Hand-held cell phone use increased subsequently but the laws appear
to have had some long term effect. The research also indicates a high-visibility cell phone and texting law enforcement campaign reduced cell phone use immediately after the campaign. The report further
found there was no evidence that cell phone or texting bans have reduced crashes.
While disagreement exists as to whether ordinances such as the proposed Ordinance 1818 result in
reduced traffic collisions numerous studies indicate using a hand held electronic communication device adds workload to a driver and thus adds a significant increment of risk to driving.5
Anecdotal evidence also supports the notion that use of a Device adds to the risk of a vehicle accident.
During the Commission work session numerous citizens testified as to their own personal distractions
caused by the use of cell phones and also testified to witnessing numerous other drivers distracted from the use of cell phones.
I. Ordinance 1818
Before we discuss options and alternatives we briefly explain proposed Ordinance 1818 – a proposal for all intents and purposes identical to ordinances adopted in Billings and Whitefish.6 The proposed
ordinance imposes a civil penalty of $100.00 against a person operating a motor vehicle on a public
highway7
3 Driver Performance While Using a Cellular Telephone Interface to a Traveler Information System, Kelly et al., Western Transportation Institute, Montana State University. Attached and available at
while using a “hands-free electronic communication device”. The ordinance as drafted makes
http://www.westerntransportationinstitute.org/research/425452.aspx (last visited November 1, 2011). 4 Id at pg. viii. 5 Id at pg. 1-5. 6 Many other communities in Montana have adopted cell phone bans. The memorandum from October 3rd work session
contains a brief synopsis of the efforts of other communities. 7 A “public highway” is defined in state law as “the entire width between the boundary lines of every publicly maintained
way when any part of the publicly maintained way is open to the use of the public for purposes of vehicular travel.” §61-1-101(27), MCA (2011). Obviously, what constitutes a “public highway” will need to be determined on a case-by-case basis
but will not include private property generally accessible to the public such as a shopping center or mall parking lot.
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Memo to the Commission re: Ordinance 1818- regulating the use of hand held electronic communication devices Page 3 of 7
violation of the restriction a primary offense – meaning; a police officer may stop a vehicle and cite a
driver for using such a device.8
Under the ordinance, a “hands-free electronic communication device” (a Device”) includes “wireless or
cellular phones, Blackberries, smart phones, i-phones, laptop and notebook computers utilizing VOIP
(voice over internet protocol) technology, navigational systems, and any other mobile communications
device that uses short-wave analog or digital radio transmissions between the device and a transmitter to permit wireless communications to and from the user of the device.”
Under the proposed ordinance, a citation may only be issued if the Device is in the “immediate physical
possession” of the driver of the vehicle. “Immediate physical possession” means “touching the hand
held electronic communications device, or physically holding the device in one’s hand or up to one’s
ear. Simply having the electronic communications device on one’s person or in a motor vehicle does not constitute immediate physical possession.”
The ordinance recognizes under certain circumstances use of a Device is necessary for the health and
safety of the driver or others. As such, the ordinance expressly recognizes six circumstances where use
of a Device would not be a violation of the ordinance. Prominent among these is the use of a “hands-free” device. See proposed Ordinance 181 at Section 1, 36.03.275.D, Bozeman Municipal Code (BMC).
This subsection defines what constitutes a “hands free” device and makes it expressly clear that, “use of
a hands free device is permitted while operating a motor vehicle provided the driver does not touch the
wireless telephone or wireless or electronic communications device with one’s hand while operating a
motor vehicle.” Thus, to qualify as a “hands-free” device it must be completely and totally “hands free.”
We provide a few important points regarding “civil” offense. As stated, the citation will be a “municipal
infraction”9
and as such will be treated as a civil, rather than a criminal, offense. A “civil” offense does
not include the possibility of arrest, does not result in a “criminal record” and is subject to a lower
standard of proof by the government (clear and convincing evidence) than a criminal offense (beyond a reasonable doubt). A civil offense issued under local authority in Montana is not recorded or charged
against a driver’s license.
II. Discussion of additional concepts requested by the commission on 10/3/11.
During the October 3rd policy discussion the Commission requested we review and provide a discussion
for several other items related to distracted driving. These include: (i) whether hands-free Devices
should be allowed; (ii) whether the City should/could ban all Devices, including additional devices such
as satellite radio receivers, or adopt an absolute distracted driving prohibition; (iii) whether the City
should/could address use of Devices only if those Devices were a contributing factor in a traffic accident; and (iv) whether the City should/could address a prohibition on use of Devices only by
“novice” driver.
While we provide the Commission with a discussion regarding requested items should the Commission
desire to implement regulations addressing the use of Devices while operating a motor vehicle we recommend the Commission adopt Ordinance 1818 as proposed rather than adopt one of the alternatives
discussed below.
8 We discuss primary versus secondary offense in greater detail in the alternative for “novice” drivers. 9 See Chpt. 24, Art. 2, BMC for specific provisions related to Municipal Infractions.
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Memo to the Commission re: Ordinance 1818- regulating the use of hand held electronic communication devices Page 4 of 7
We begin our discussion with whether to allow the use of hands free Devices. A. Whether to allow the use of “hands-free” Devices.
As stated above, Ordinance 1818 as drafted provides a specific exemption from the ban on use of a
Device while operating a motor vehicle if the driver uses a “hands free” Device. Helena recently preliminarily adopted an ordinance that did not include an exemption for hands-free devices.10 We
suggest you discuss the efficacy of banning the use of hands free devices as it appears to be a common
perception that hands free devices do not carry the same risk of causing or contributing to a traffic
collision as hand held Devices. However, the WTI study discusses research that holds that hands-free
devices may actually have as high a risk factor as hand-held devices.11
We feel enforcement of a prohibition on using hands free devices will be difficult as an officer must determine prior to stopping a
vehicle whether the driver is using a hands-free device.
B. Regulating on all distractions while driving.
During the October 3rd discussion the Commission discussed the regulation of the use of Devices in
relation to the numerous distractions drivers face while driving such as eating French fries or drinking
coffee, changing the station on a satellite radio receiver or retrieving items that slide off the dash. The
Commission also discussed these concepts in relation to careless driving and whether a citation for
careless driving could suffice.
“Careless Driving” is a criminal offense under both Montana state law12 and the Bozeman Municipal
Code13
10 Helena may be reconsidering this approach and will decide final approval of its ordinance November 7th. We will provide you an update on this at the hearing on first reading.
and was discussed by the Commission as an alternative to establishing a specific local traffic
regulation related to cell phone use that may target a broader range of distractions. The prosecutors in
the City Attorney’s Office feel the use of a Device while driving or a common distraction such as eating without involvement in an accident or collision does not rise to the level of careless driving as it would be difficult to obtain a criminal conviction for such a citation because of the higher standard of proof
leading a reasonable juror to determine the mere use of a cell phone, eating, etc. did not, beyond a
reasonable doubt, “unduly or unreasonably endanger the life, limb, property or other rights of a person
entitled to the use of the way.”
11 See the attached 2005 study from MSU’s Western Transportation Institute at pg. 2-3. See also the National Safety Council white paper “Understanding the distracted brain: Why driving while talking on hands-free phones is risky behavior” at:
http://www.nsc.org/safety_road/Distracted_Driving/Pages/CognitiveDistraction.aspx (last visited November 1, 2011). 12 MCA 61-8-302. Careless driving. (1) A person operating or driving a vehicle on a public highway shall drive it in a
careful and prudent manner that does not unduly or unreasonably endanger the life, limb, property, or other rights of a person
entitled to the use of the highway. (2) A person who is convicted of the offense of careless driving is subject to the penalties provided in 61-8-711 or 61-8-
716. 13 BMC Sec. 36.03.260. - Careless driving prohibited; penalty.
A. A person operating or driving a vehicle of any character on the ways of the city open to the public shall drive it in a careful and prudent manner so as not to unduly or unreasonably endanger the life, limb, property or other rights of a
person entitled to the use of the way. B. Any person who violates this section shall be deemed guilty of a misdemeanor and upon conviction thereof shall
be fined in an amount of not less than $25.00 or more than $500.00.
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Memo to the Commission re: Ordinance 1818- regulating the use of hand held electronic communication devices Page 5 of 7
While we do not recommend the following approach, if the Commission is interested in addressing all types of distractions without the existence of an accident or collision the Commission could consider a regulation more specific than the current careless driving provisions and adopt something similar to
Troy, MI.
In 2010, Troy, MI adopted an ordinance that, in addition to a prohibition on using a cell phone while driving, adds a section that makes an offense:
“any action by the driver that diverts his or her attention resulting in the failure to use due care and caution in the
operation of a motor vehicle while the vehicle is in motion on any highway or street or placed open to the general public []. Such action can include but is not limited to: eating, reading, writing, performing personal
hygiene/grooming, physical interaction with pets, passengers, or unsecured cargo, any of which is done in a manner that prohibits the driver from maintaining direct physical control of the motor vehicle steering mechanism with at
least one hand that is free of all other objects and used entirely to form a controlled grip on the steering mechanism.”
Sect. 1.20.05.3, Troy City Code (Michigan) (emphasis added).
As shown, aside from the laundry list of behaviors that make up “distracted driving,” the operative
language in Troy’s ordinance is very similar to the careless driving standard established under Montana
and Bozeman regulations (compare language such as “careful and prudent manner” under Bozeman and
Montana codes with “failure to use due care and caution” in Troy’s code). We recommend the
Commission not take this approach.
We suggest that if the Commission is interested in addressing distractions beyond the use of Devices
you consider amending careless driving in relation to vehicle collisions as discussed in the next section
(C).
C. Careless Driving: use of a Device as a contributing factor in a traffic collision.
As discussed on October 3rd, the Police Department gathered data this past summer regarding use of
Devices in vehicle collisions. The study found that out of 558 reports of vehicle collisions 12 of those
drivers were either talking on or looking at their cell phone at the time of the collision.14
From this discussion the Commission was interested in understanding more about enhancing the penalty for using a cell phone while involved in a collision.
The Commission could consider two approaches: (i) if Ordinance 1818 is adopted the Commission
could add a specific provision creating an enhanced civil penalty if the person responsible for the traffic collision was using a cell phone while driving; and/or (ii) amend the BMC regulation on careless driving.
The first option could adopt language in the proposed Ordinance 1818 similar to an enhanced penalty in
the Missoula Municipal Code: “If any vehicle crash investigation determines that a cell phone [i.e. a
14 Please see the 10/3/11 memo for additional information on this traffic study.
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Memo to the Commission re: Ordinance 1818- regulating the use of hand held electronic communication devices Page 6 of 7
Device] was in use by a vehicle operator involved in the crash at the time the crash occurred, the
minimum fine shall be $______which may not be suspended or waived up to a maximum of $500.00.”15
The second option would be to add a third section (C) to existing 36.03.260 (careless driving) to read;
“C. A driver involved in motor vehicle crash/accident while using a hand held electronic communication device
shall be considered prima fascia evidence the person unduly or unreasonably endangered the life, limb, or property of other persons entitled to the use of the way.”
The Commission could adopt either such a provision in lieu of or in addition to the civil prohibition on
use of a Device already included in Ordinance 1818. If added to the careless driving regulation use of a
Device in a vehicle collision would be a criminal misdemeanor subject to the general penalty in the BMC (see 1.01.210, BMC) rather than a civil offense. Amending the careless driving provision in the BMC will require an additional hearing on provisional adoption.
D. Prohibition on the use of Devices by novice drivers only.
The Commission expressed interest in understanding whether the City could impose a restriction on the use of Devices for drivers who have limited experience. Cautious of equal protection and due process
issues related to age, we analyzed whether the City could adopt a regulation that provided for a civil
offense for drivers subject to the Montana graduated driver’s licensing program16
. The City has the legal
authority to tie a local civil offense to those involved in the graduated driver’s licensing program as such an offense will not impede upon the State’s authority to regulate driver’s licensing; however, enforcement of such a regulation would be difficult and will by necessity be a secondary offense.
If the Commission were interested in this approach the Commission could create a regulation that made
it a civil offense for a person with a “learner’s license,” a “traffic education learner’s license” or a “first year restricted license”17
Under this approach, because of equal protection and due process concerns, we urge the offense be a
secondary offense cited only when an officer pulls over a vehicle and in the course of that investigation
recognizes the driver is authorized to operate a motor vehicle under only one of the above licenses.
to use a Device while operating a motor vehicle as is currently the case with Ordinance 1818.
An example of regulatory language implementing a secondary offense can be found in state law related
to the use of seat belts: “The department [of justice] or its agent [i.e. a police officer] may not require a
driver who may be in violation of this section to stop except (a) upon reasonable cause to believe that
the driver has violated another traffic regulation.” 18
15 See Missoula Municipal Code, Sect. 10.20.310(A)(3). Missoula’s minimum penalty for texting is $100 for a first offense
and $150 for a second or subsequent offense up to a maximum of $500.00 for each. The enhanced penalty for texting while involved in a vehicle collision is $350. We recommend that if the Commission is interested in this approach the enhanced
penalty only be if the use of the cell phone can be shown as a “contributing factor” to the cause of the accident.
16 Montana’s graduated driver’s licensing program (GDLP) is a mandatory program for residents under age 18 to obtain a
driver’s license. The GDLP is found at Title 61, Chpt. 5, Part 1, MCA. 17 61-5-106, MCA. 18 61-8-103(4), MCA.
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Memo to the Commission re: Ordinance 1818- regulating the use of hand held electronic communication devices Page 7 of 7
If the Commission decides to move forward with an ordinance regulating the use of Devices for only
novice drivers we recommend the Commission make the offense a secondary offense. ALTERNATIVES: As suggested by the Commission.
UNRESOLVED ISSUES: None.
FISCAL EFFECTS: The addition of every regulation requires additional time commitment from staff yet we believe that at this time no additional personnel will be needed to enforce this ordinance as the
additional workload will be subsumed by existing staff. An education campaign associated with the
adoption of this ordinance will require allocation of police resources but should not result in any
additional departmental expenditure unless the City implements an advertising campaign or installs wayfarer signage at the primary entrances to the City.
The City will send unpaid citations to collections per the City’s existing contract. Those seeking to
challenge the issuance of a citation may appeal the citation to Municipal Court; at that time, City
resources will be consumed to defend and try the citation. Attachments:
• Ordinance 1818.
• October 3, 2011 Commission Memorandum for work session on distracted driving
• Driver Performance While Using a Cellular Telephone Interface to a Traveler Information
System, Kelly et al., Western Transportation Institute, Montana State University, July 29, 2005.
Report compiled on: November 3, 2011
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