New Hampshire Law Banning Cell Phone Use While Driving by Mark Stevens 603-893-0074

New Hampshire Hands Free Cell Phone Law. The new ban on making cell phone calls and texts, titled "Use of Mobile Electronic Devices While Driving; Prohibition (RSA 265:79-c),  went into effect today, July 1, 2015 in New Hampshire.  Here is the law:

[RSA 265:79-c effective July 1, 2015.]
    265:79-c Use of Mobile Electronic Devices While Driving; Prohibition. –
    I. (a) No person, while driving a moving motor vehicle upon a way or temporarily halted in traffic for a traffic control device or other momentary delay, shall use any hand-held mobile electronic device capable of providing voice or data communication, including but not limited to: reading, composing, viewing, or posting any electronic message; or initiating, receiving, or conducting a conversation; or initiating a command or request to access the Internet; or inputting information into a global positioning system or navigation device; or manually typing data into any other portable electronic device. An operator of a motor vehicle who holds a cellular telephone or other electronic device capable of voice communication in the immediate proximity of his or her ear while such vehicle is in motion is presumed to be engaging in a call within the meaning of this section.
       (b) "Driving,'' for the purposes of this section, shall not include when a person is behind the controls of a vehicle that has pulled to the side of or off the road at a location where it is legal to do so and where the vehicle remains stationary.
    II. It shall not be an offense under this section for any person driving a motor vehicle upon a way:
       (a) To make use of a cellular telephone or other electronic device capable of voice communication to report an emergency to the enhanced 911 system or directly to a law enforcement agency, fire department, or emergency medical provider.
       (b) To use one hand to transmit or receive messages on any non-cellular 2-way radio.
       (c) To use a Bluetooth enabled or other hands-free electronic device, or a similar device that is physically or electronically integrated into a motor vehicle, for such a purpose to send or receive information provided the driver does not have to divert his or her attention from the road ahead. As used in this section, "hands-free electronic device'' means a mobile electronic device that has an internal feature or function, or that is equipped with an attachment or addition, whether or not permanently part of such mobile electronic device, by which a user engages in conversation without the use of either hand; provided, however, this definition shall not preclude the use of either hand merely to activate, deactivate, or initiate a function of the telephone.
    III. Any person who violates this section shall be guilty of a violation and shall be fined $100 plus penalty assessment for a first offense, $250 plus penalty assessment for a second offense, and $500 plus penalty assessment for any subsequent offense within a 24-month period.
    IV. No person less than 18 years of age shall use a cellular or mobile telephone or other mobile electronic device, whether hands-free or not, while driving a motor vehicle in motion or temporarily stopped in traffic upon any way, except to report an emergency to the enhanced 911 system or any public safety agency. A person violating this paragraph shall be subject to the fines in paragraph III and license suspension or revocation under RSA 263:14, III.

Thoughts on this law:   Be careful while driving.  It is not a good idea to text and drive or be distracted in any other way while driving.  The safest thing to do is to pay attention to the road.  However, if you get stopped and the police question you about whether you were talking or texting, it is as unwise to admit to that as it is to admit to any other other crime or violation.

Furthermore, the last sentence of paragraph I (a) of this new law may be constitutionally challenged as it contains a presumption of guilt if the police see a phone in the "immediate proximity" of a driver's ear.  Firstly, "immediate proximity" is vague, and most importantly, we enjoy a presumption of innocence under our state and federal Constitutions, not a presumption of guilt.

Be careful out there, as the police now have one more tool to stop you with.

Attorney Mark Stevens
Law Offices of Mark Stevens
5 Manor Parkway
Salem, NH 03079
Admitted in New Hampshire and Massachusetts

(c) 2015, 2016

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