42-4-239. Misuse of a wireless telephone - definitions - penalty - preemption - legislativ

42-4-239. Misuse of a wireless telephone - definitions - penalty - preemption - legislative declaration. [Editor's note: This version of this section is effective until January 1, 2025.] (1) As used in this section, unless the context otherwise requires: (a) "Emergency" means a situation in which a person: (I) Has reason to fear for such person's life or safety or believes that a criminal act may be perpetrated against such person or another person, requiring the use of a wireless telephone while the car is moving; or (II) Reports a fire, a traffic accident in which one or more injuries are apparent, a serious road hazard, a medical or hazardous materials emergency, or a person who is driving in a reckless, careless, or otherwise unsafe manner. (b) "Operating a motor vehicle" means driving a motor vehicle on a public highway, but "operating a motor vehicle" shall not mean maintaining the instruments of control while the motor vehicle is at rest in a shoulder lane or lawfully parked. (c) "Use" means talking on or listening to a wireless telephone or engaging the wireless telephone for text messaging or other similar forms of manual data entry or transmission. (d) "Wireless telephone" means a telephone that operates without a physical, wireline connection to the provider's equipment. The term includes, without limitation, cellular and mobile telephones. (2) A person under eighteen years of age shall not use a wireless telephone while operating a motor vehicle. This subsection (2) does not apply to acts specified in subsection (3) of this section. (3) A person shall not use a wireless telephone for the purpose of engaging in text messaging or other similar forms of manual data entry or transmission while operating a motor vehicle. (4) Subsection (2) or (3) of this section shall not apply to a person who is using the wireless telephone: (a) To contact a public safety entity; or (b) During an emergency. (5) (a) A person who operates a motor vehicle in violation of subsection (2) of this section commits a class A traffic infraction as defined in section 42-4-1701 (3), and the court or the department of revenue shall assess a fine of fifty dollars. (b) A second or subsequent violation of subsection (2) of this section is a class A traffic infraction as defined in section 42-4-1701 (3), and the court or the department of revenue shall assess a fine of one hundred dollars. (5.5) (a) Except as provided in subsections (5.5)(b) and (5.5)(c) of this section, a person who operates a motor vehicle in violation of subsection (3) of this section commits a class 2 misdemeanor traffic offense, and the court or the department shall assess a fine of three hundred dollars. (b) If the person's actions are the proximate cause of bodily injury to another, the person commits a class 1 misdemeanor traffic offense and shall be punished as provided in section 42-4-1701 (3)(a)(II). (c) If the person's actions are the proximate cause of death to another, the person commits a class 1 misdemeanor traffic offense and shall be punished as provided in section 42-4-1701 (3)(a)(II). (6) (a) An operator of a motor vehicle shall not be cited for a violation of subsection (2) of this section unless the operator was under eighteen years of age and a law enforcement officer saw the operator use, as defined in paragraph (c) of subsection (1) of this section, a wireless telephone. ividual shall not use a mobile electronic device while operating a motor vehicle. (3) It is not a violation of subsection (2) of this section to use a mobile electronic device: (a) To contact a public safety entity; (b) During an emergency; (c) When an employee or contractor of a utility is acting within the scope of the employee's or contractor's duties when responding to a utility emergency; (d) When an employee or contractor of a city or county is acting within the scope of the employee's or contractor's duties as a code enforcement officer or animal protection officer; or (e) During the performance of a first responder's official duties. (4) (a) Except as provided in subsection (4)(b) of this section, an individual who violates this section commits a class A traffic infraction, and the court shall assess a penalty as follows: (I) A fine of seventy-five dollars and a surcharge of ten dollars for the first offense within the immediately preceding twenty-four months; (II) A fine of one hundred fifty dollars and a surcharge of ten dollars for the second offense within the immediately preceding twenty-four months; or (III) A fine of two hundred fifty dollars and a surcharge of ten dollars for the third or subsequent offense within the immediately preceding twenty-four months. (b) (I) An individual charged with violating subsection (2) of this section shall not be convicted if the individual: (A) Produces a hands-free accessory or proof of purchase of a hands-free accessory; and (B) Affirms under penalty of perjury that the individual has not previously had a charge dismissed under this subsection (4)(b). (II) The court clerk may dismiss the charge if the clerk verifies that the individual has complied with both subsections (4)(b)(I)(A) and (4)(b)(I)(B) of this section. (c) If the individual's actions are the proximate cause of bodily injury to another, the individual commits a class 1 misdemeanor traffic offense and shall be punished as provided in section 42-4-1701 (3)(a)(II). (d) If the individual's actions are the proximate cause of death to another, the individual commits a class 1 misdemeanor traffic offense and shall be punished as provided in section 42-4-1701 (3)(a)(II). (5) This section does not apply to an individual with a commercial driver's license who is operating a commercial vehicle. (6) An individual operating a motor vehicle shall not be cited for a violation of subsection (2) of this section unless a law enforcement officer saw the individual use a mobile electronic device in a manner that caused the individual to drive in a careless and imprudent manner, without due regard for the width, grade, curves, corners, traffic, and use of the streets and highways and all other attendant circumstances, as prohibited by section 42-4-1402. (7) This section does not authorize the seizure and forfeiture of a mobile electronic device, unless otherwise provided by law.