In Brief:

  1. A 2020 Virginia traffic law takes effect January 1, 2021. Drivers who “hold” a phone while driving now risk stiff fines—proof that they are actually using the phone is not necessary.
  2. The new law is not a moving violation, so it does not carry penalty points. But drivers can be pulled over just for holding a phone, and face stiff fines
  3. If a driver was violating the statute before a collision, this new violation may provide injured persons additional evidence to prove negligence and influence damages at trial, but it would not likely be enough for “punitive” damages.

Virginia’s new Code § 46.2-818.2 takes effect on January 1, 2021.  The law empowers police to pull over drivers who “hold” a phone or other “handheld communication device”—use of the phone is not even technically required.  The law states (in part):

  1. It is unlawful for any person, while driving a moving motor vehicle on the highways in the Commonwealth, to hold a handheld personal communications device….
  2. A violation of this section is a traffic infraction punishable, for a first offense, by a fine of $125 and, for a second or subsequent offense, by a fine of $250. If a violation of this section occurs in a highway work zone, it shall be punishable by a mandatory fine of $250.

If a driver is also convicted for reckless driving while violating this law, he may face a fine up to $2,500, up to 12 months in jail, and up to a six-month license suspension.

The law lists several exceptions, but they are narrow.  The two most relevant to the average citizen permit a driver to hold a phone while “lawfully parked or stopped,” or “to report an emergency.”  While most people assume the first one would permit drivers to continue using their phone for any purpose while stopped at a red light or in traffic, this is not necessarily true and may still risk citation.  It is easy to envision situations where a driver might still be cited for using the phone if violating other duties, such as watching the signal and surrounding traffic and promptly obeying the changes, or while easing to a stop, or beginning to go.

This new law is a traffic infraction, not a moving violation for which a conviction results in “points” against a license.  Therefore, convictions should not result in increases in insurance premiums.  But officers can pull over violators on suspicion of this infraction alone.  It is a primary offense; officers need not suspect a driver of any other offense to make a stop.

This law replaces Virginia law that only banned typing or reading texts or emails, which was difficult to enforce since violators often try to lower their phones and argue that they were not manipulating them.  As it’s worded, the new law makes it a strict offense and does not require any proof that the driver was “using” the phone in a particular way.

We do note that “hold” is not defined, so some people will undoubtedly try to wiggle out of a charge by arguing that they were not “holding” their phone if it was not physically in their hand, and was instead propped in a cell phone mount or cupholder.  Maybe this will work.  And as a practical matter, officers may not cite everyone who simply reaches down to quickly press “dial” or “play,” but the only certain way to follow the law—and a much safer practice—is probably to convert to an entirely voice-operated, hands-free Bluetooth operation if possible.

While some people will find this to be an assault on their favorite ways of alleviating boredom on the road, the bottom line is that phone use is the most common form of distracted driving.  The Drive Smart Virginia organization presents some compelling information on its own site, including:

    • The National Highway Traffic Safety Administration wisely classifies distracted driving as a “crisis,” and that Virginia was one of 11 states “dangerously behind” in driving safety laws.
    • According to Virginia Tech, 80% of all crashes and 65% of all near crashes involve driver inattention within 3 seconds of the crash.
    • According to a 2018 Insurance Institute for Highway Safety Survey, cell phone use in cars has increased dramatically, 57% more than four years earlier.
    • Texting (i.e., the act of manipulating a phone) while driving increases a crash risk by 2300%.
    • Meanwhile, a Liberty Mutual survey confirmed what most parents suspect and fear: 80% of teens reported that they viewed APP use while driving as “not distracting.”

As a result, the law may be an inconvenience to some people, especially those wedded to texting.  But if aggressively enforced, it will likely have the desired effect of clawing back the rise of distractions from the online devices.

In Part Two of “Cell Phone Use While Driving,” Munro Law PC will discuss how violations of Virginia’s laws relating to phone use while driving can be powerful evidence in personal injury lawsuits, influencing both proof of liability and enhancing damages.