§17C-14-15. Prohibited
use of an electronic communications device driving without handheld features;
definitions; exceptions; penalties.
(a) Except as provided in subsection
(c) of this section, a person may not drive or operate a motor vehicle on a
public street or highway while:
(1) Texting; or
(2) Using a cell phone or
other electronic communications device, unless the use is accomplished by
hands-free equipment.
(b) For purposes of this
section, the following terms shall mean:
(1) “Bodily injury”
means an injury that causes substantial physical pain, illness, or any
impairment of physical condition.
(1) (2) “Cell phone” shall mean a cellular,
analog, wireless or digital telephone.
(2) (3) “Driving” or “operating a motor vehicle”
means operating a motor vehicle, with the motor running, including while
temporarily stationary because of traffic, a traffic control device, or other
momentary delays, but does not include operating a motor vehicle after the
driver has moved the vehicle to the side of, or off, a highway and halted in a
location where the vehicle can safely remain stationary.
(3) (4) “Electronic communication device” means a
cell telephone, personal digital assistant, electronic device with mobile data
access, laptop computer, pager, broadband personal communication device,
two-way messaging device, electronic game, or portable computing device. For
the purposes of this section, an “electronic communication device” does not
include:
(A) Voice radios, mobile
radios, land mobile radios, commercial mobile radios or two way radios with the
capability to transmit and receive voice transmissions utilizing a push-to-talk
or press-to-transmit function; or
(B) Other voice radios used
by a law-enforcement officer, an emergency services provider, an employee or
agent of public safety organizations, first responders, Amateur Radio Operators
(HAM) licensed by the Federal Communications Commission and school bus
operators.
(4) (5) “Engaging in a call” means when a person
talks into or listens on an electronic communication device, but shall not
include when a person dials or enters a phone number on a pushpad or screen to
initiate the call.
(5) (6) “Hands-free electronic communication
device” means an electronic communication device that has an internal feature
or function, or that is equipped with an attachment or addition, whether or not
permanently part of such electronic communication device, by which a user
engages in a call without the use of either hand or both hands.
(6) (7) “Hands-free equipment” means the internal
feature or function of a hands-free electronic communication device or the
attachment or addition to a hands-free electronic communication device by which
a user may engage in a call or text without the use of either hand or both
hands.
(8) “Serious bodily injury” means bodily injury that
creates a substantial risk of death, that causes serious or prolonged disfigurement,
prolonged impairment of health, or prolonged loss or impairment of the function
of any bodily organ.
(7) (9) “Texting” means manually entering
alphanumeric text into, or reading text from, an electronic communication
device, and includes, but is not limited to, short message service, e-mailing,
instant messaging, a command or request to access a World Wide Web page or engaging
in any other form of electronic text retrieval or entry, for present or future
communication. For purposes of this section, “texting” does not include the
following actions:
(A) Reading, selecting or
entering a telephone number, an extension number, or voicemail retrieval codes
and commands into an electronic device by the pressing the device in order to
initiate or receive a phone call or using voice commands to initiate or receive
a telephone call; or
(B) Inputting, selecting
or reading information on a global positioning system or navigation system; or
(C) (B) Using a device capable of performing
multiple functions, including fleet management systems, dispatching devices, smart
phones, or citizens band radios or music players, for a
purpose that is not otherwise prohibited in this section.
(8) (10) “Using a cell phone or other electronic
communication device” means holding in a person’s hand or hands an electronic
communication device while:
(A) Viewing or transmitting
images or data;
(B) Playing games;
(C) Composing, sending,
reading, viewing, accessing, browsing, transmitting, saving or retrieving
e-mail, text messages or other electronic data; or
(D) Engaging in a call.
(c) Subsection (a) of this
section shall not apply to:
(1) A law-enforcement officer,
a firefighter, an emergency medical technician, a paramedic or the operator of
an authorized emergency vehicle in the performance of their official duties;
(2) A person using an
electronic communication device to report to appropriate authorities a fire, a
traffic accident, a serious road hazard, or a medical or hazardous materials
emergencies.
(3) The activation or
deactivation of hands-free equipment or a function of hands-free equipment.
(d) This section does not
supersede the provisions of section three-a, article two, chapter
seventeen-b §17B-2-3a of
this code or any more restrictive provisions for drivers of commercial motor
vehicles prescribed by the provisions of chapter seventeen-e §17E-1-1 et
seq. of this code or federal law
or rule.
(e) Any person who violates
the provisions of subsection (a) of this section is guilty of a traffic offense
and, upon conviction thereof, shall for a first offense be fined $100, and shall, within 180 days from the date of
conviction, complete 20 hours of community service, and an approved driver
improvement course which includes curriculum on distracted driving; for a second offense be fined $200, and shall,
within 180 days from the date of conviction, complete 40 hours of community
service, and an approved driver improvement course which includes curriculum on
distracted driving; and for a third or subsequent offense be fined $300, and
shall, within 180 days from the date of conviction, complete 60 hours of
community service, and an approved driver improvement course which includes
curriculum on distracted driving. No
court costs or other fees shall be assessed for a violation of subsection (a)
of this section.
(f) The
Commissioner of the Division of Motor Vehicles shall suspend the license or
permit to drive and any nonresident operating privilege of any person convicted
of a second offense under subsection (e) of this section for a period of 30
days. The commissioner shall suspend the license or permit to drive and any
nonresident operating privilege of any person convicted of a third offense
under subsection (e) for a period of 180 days. For each subsequent offense
under subsection (e) following a third offense, the commissioner shall add an
additional 180 days to the period of suspension.
(g) The Commissioner of the Division of Motor Vehicles
shall further suspend the license or permit to drive and any nonresident
operating privilege of any person who is convicted of an offense under
subsection (e) of this section, and who fails to complete the community service
and distracted driving obligations set forth in subsection (e) of this section
within 180 days. Said suspension shall remain in effect until the obligations
imposed by subsection (e) are completed.
(h) Any
person who violates the provisions of subsection (a) of this section, and in
doing so, proximately causes the death of any person, is guilty of a felony
and, upon conviction thereof, shall be imprisoned in a state correctional
facility for not less than three nor more than 15 years and shall be fined not
less than $1,000 nor more than $3,000, and shall have his or her license to
operate a motor vehicle revoked by the Commissioner of the Division of Motor
Vehicles for a period of 10 years: Provided, That any death charged
under this subsection must occur within one year of the offense: Provided,
however, That if the person has previously been convicted under any
provision of this section, the person shall have his or her license to operate
a motor vehicle revoked by the Commissioner of the Division of Motor Vehicles
for life.
(i) Any
person who violates the provisions of subsection (a) of this section, and in
doing so, proximately causes serious bodily injury to any person other than
himself or herself, is guilty of a felony and, upon conviction thereof, shall
be imprisoned in a state correctional facility for not less than two nor more
than 10 years and shall be fined not less than $1,000 nor more than $3,000, and
shall have his or her license to operate a motor vehicle revoked by the
Commissioner of the Division of Motor Vehicles for a period of five years:
Provided, That if the person has previously been convicted under any provision
of this section, the person shall have his or her license to operate a motor
vehicle revoked by the Commissioner of the Division of Motor Vehicles for life.
(j) Any
person who violates the provisions of subsection (a) of this section, and in
doing so, proximately causes a bodily injury to any person other than himself
or herself, is guilty of a misdemeanor and, upon conviction thereof, shall be
confined in jail for not less than one day nor more than one year and shall be
fined not less than $200 nor more than $1,000, and shall have his or her
license to operate a motor vehicle revoked by the Commissioner of the Division
of Motor Vehicles for a period of two years: Provided, That if the
person has previously been convicted under any provision of this section, the
person shall have his or her license to operate a motor vehicle revoked by the
Commissioner of the Division of Motor Vehicles for five years. Any jail term
imposed pursuant to this subsection shall include actual confinement of not
less than 24 hours: Provided, however, that a person sentenced pursuant
to this subsection shall receive credit for any period of actual confinement he
or she served upon arrest for the subject offense.
(k) For any period of revocation imposed pursuant to a
conviction under subsection (h), (i) or (j) of this section that is not a
lifetime revocation, the license to operate a motor vehicle in this state may
not be reissued until the offender completes 60 hours of community service, and
an approved driver improvement course, which includes curriculum on distracted
driving.
(f) (l) Notwithstanding any other provision of
this code to the contrary, points may not be entered on any driver’s record
maintained by the Division of Motor Vehicles as a result of a violation of this
section, except for the third and subsequent convictions of the offense under
subsection (e), for which three points shall be entered on any driver’s
record maintained by the Division of Motor Vehicles.
(g) (m) Driving or operating a motor vehicle on a
public street or highway while texting shall be enforced as a primary offense. Driving
or operating a motor vehicle on a public street or highway while using a cell
phone or other electronic communication device without hands-free equipment
shall be enforced as a secondary offense until July 1, 2013, when it shall be
enforced as a primary offense for purposes of citation
(h) (n) Within ninety days of the effective
date of this section, the The Department of Transportation
shall cause to be erected signs upon any highway entering the state of West
Virginia on which a welcome to West Virginia sign is posted, and any other
highway where the Division of Highways deems appropriate, posted at a distance
of not more than one mile from each border crossing, each sign to bear an
inscription clearly communicating to motorists entering the state that texting,
or the use of a wireless communication device without hands-free equipment, is
illegal within this state.
(i) (o) Nothing contained in this section shall be
construed to authorize seizure of a cell phone or electronic device by any law-
enforcement agency, except in the case of a violation of subsection h), (i)
or (j).
(j) (p) No policy providing liability coverage for
personal lines insurance shall contain a provision which may be used to deny
coverage or exclude payment of any legal damages recoverable by law for
injuries proximately caused by a violation of this section, as long as such amounts
are within the coverage limits of the insured.
