On my way to work each day, I have to wait at a busy intersection to make a left hand turn. Often, while I am waiting at the light, I see drivers traveling by while holding a cell phone to their ear. I think we all have seen instances where drivers are distracted while speaking on a cell phone and yet drivers continue to ignore the law. The statute in New Jersey which allows a police officer to charge a motorist with the improper use of a cell phone while driving, is listed at N.J.S.A. 39:4-97.3. There has not been a flurry of opinions from our courts interpreting this statute, however, in an unpublished opinion titled State v. Malone, decided on July 1, 2011, our Appellate Division recently reversed a driver’s conviction for an alleged cell phone violation.

In Malone, our Appellate Division ruled that N.J.S.A. 39:4-97.3 does not limit the use of a hands-free telephone to listening because a motorist using a hands-free wireless telephone is also permitted to hold the wireless telephone in one hand while activating, deactivating or initiating a function of the telephone. The Appellate Court concluded that initiating a function of the hands-free wireless telephone includes driving; and it may be necessary to press more than one button to “activate, deactivate, or initiate a function of the telephone.”

The Appellate Court emphasized, other than in an emergency, a motorist may only engage in a conversation on a cell phone if the telephone is equipped with a hands-free device. The motorist may not hold the telephone in one hand while talking to, or listening to, the person on the other end of the phone. A motorist is also prohibited from holding the telephone to send a text message or electronic mail. The only circumstance in which a motorist is permitted to hold a wireless cell phone in one hand, with the other hand on the steering wheel, is when the motorist is activating, deactivating or initiating a function of the telephone, which includes answering the phone, ending the phone call or dialing a phone number.

Our Appellate Court pointed out that seven other states and the District of Columbia have enacted statutes that impose limits on the holding of a cell phone while driving. See Cal. Veh. Code Section 23123 (2011); Conn. Gen. Stat. Section 14-296aa (2011); Del. Code Ann. tit. 21, Section 4176c (2011); D.C. Code Section 50-1731.04; Md. Code Ann., Transp. Section 21-1124.2 (2011); N.J.S.A. 39:4-97.3; N.Y. Veh. & Traf. Law, Section 1225c (McKinney 2011); Or. Rev. Stat. Section 811.507 (2011); Wash. Rev. Code Section 46.61.667 (2010).

I believe in the near future additional states will enact laws to impose limits on the holding of a cell phone while driving. It shouldn’t take more accidents caused by distracted drivers holding cell phones to get legislators around the country to pay attention to this serious traffic safety issue.