Floyd A. O'Reilly Blog: What you should know about Oregon’s new distracted driving law

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(Photos: J. Maus/BikePortland)

Our legal contributor Ray Thomas is an author and lawyer based in Portland.

On October 1, 2017, Oregon’s new distracted driving law went into effect. The law has an expanded scope and raises the penalties for violations. Here are a few things every Oregon bicycle rider should know about it.

People who walk and bike know all too well the risks drivers pose as they stare into screens and attempt to drive around us. Since we are not encapsulated inside a steel compartment looking at the world through safety glass, we see the shocking number of people who try to maneuver their cars and trucks down the streets while completely tuned out to anything but what is on the screen in front of them.

And the statistics confirm how deadly this behavior is: More than 4,000 crashes were caused by distraction in Oregon in 2014. And between 2011 and 2015 there were 54 fatalities and 15,150 injuries in Oregon caused by distracted drivers (see the Oregon Department of Transportation 2014 Oregon Traffic Crash Summary).

A recent ODOT study found that while 84% of respondents felt uncomfortable with a driver who was distracted, 75% admitted to doing it while alone and 44% admitted to driving distracted with passengers. Ask any rider on the street and the numbers seem far higher. The reasons are complex, but the study suggests that skewed reward-seeking behavior patterns exist due to several causes, most notably a lack of negative legal consequences or negative social pressure. Humans get a lot of useful and fun stuff by using mobile devices while driving; from instructions on where to go and how to get there, to checking in with loved ones, playing Angry Birds, or sending text messages.

Technically legal; but it increases risks and could put you in hot water with a judge.

In our office we have a case where a pizza delivery driver was checking his Amazon order while he made the nightly cash run to the bank. While distracted by his phone he failed to see a person who had fallen (while walking) directly in front of him. The collision had fatal consequences. That one moment of inattention resulted in the loss of life of a father — and left behind a devastated family and a pregnant fiancé. The driver was charged and convicted of Careless Driving (with death of a Vulnerable Roadway User) and Distracted Driving — but those consequences do next to nothing to reconcile the disaster he caused. And the only reason he was charged was because a hard working motorcycle officer took the time to analyze his phone records. In most collisions, the distracted driving is never discovered because law enforcement investigation resources are stretched so thin.

The public health consequences of distracted driving are too vast to ignore. The ODOT study recommended stronger consequences and an increase in education and enforcement.

What the new law covers

House Bill 2597 created the changes to ORS 811.507 that greatly expands its application. The new law applies to any “mobile communication device” that is “not permanently installed in a motor vehicle.” And the definition includes a “device capable of text messaging, voice communication, entertainment, navigation, accessing the Internet or producing electronic mail.” The new law extends not just to moving but also to being “temporarily stationary because of traffic, a traffic control device or other momentary delays.” The exceptions include when making an emergency call or when pulled off the roadway or parked.

The list of prohibited actions includes using the device if the driver is not able to “keep both hand hands on the steering wheel.” Presumably, if the device is permanently built in to the motor vehicle or the driver is able to use it hands free then it is okay, which allows voice activation of a mobile device but only if the person is 18 years or older. However, in order to type in an address or query you have to pull over and park.

There is also a somewhat unclear exception built in to the law as it allows a person to “activate or deactivate” a device or “a function of the device” which has been described as including a “single touch or swipe.” It has been argued that this exception will allow Uber and Lyft drivers to swipe and accept a fare while driving, a legal assertion that has not yet been tested in court.

The consequences

For a first offense, there is a fine of $260. A Distracted Driving Course option, if offered, will reduce the fine but not make the conviction on the driver’s record go away. For a second offense or first offense which causes a crash, the fine goes up to $435. For the third offense in ten years, the charge becomes a Class B misdemeanor traffic crime which may include up to a six month sentence in the county jail. These are serious negative consequences. (Not to mention increases to the driver’s insurance policy.)

Does it apply to bicycle riders?

ORS 811.507 states that it applies to “operating” a “motor vehicle” on a “highway or premises open to the public.” While ORS 814.400 states that “a bicycle is a vehicle”, a bicycle is not a “motor vehicle.” By its terms of application, the new distracted driving law only applies to vehicles with motors. However a driver’s defense lawyer may still try to assert that a bicycle rider’s use of a mobile device was negligence and contributed to a collision with a motor vehicle.

Learn more about the law by watching this short video from the Beaverton Police Department (which unfortunately shows an officer looking away from the road to talk to the camera) and view this very clear and helpful PDF summary put out by the State of Oregon.

— Ray Thomas is a partner at Thomas, Coon, Newton & Frost and author of Pedal Power: A Legal Guide for Oregon Bicyclists.

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