The legislature forgoes a full ban on cell use by drivers in favor of a targeted approach that bans hand-held communications in construction zones, emergency scenes, and other places.

In what could become a windfall for lawyers representing defendants charged with violating traffic laws, Gov. Pat Quinn has signed three bills prohibiting specific kinds of telephone use while driving.

The laws are "fairly well tailored to real problems," said a past chair of the ISBA Human Rights Section Council, who also warned that most drivers - even lawyers such as himself - could easily fall victim to the new cell-phone regulations.

Public Act 97-0828, which became law on July 20, bans most hand-held telephone use within 500 feet of emergency scenes throughout Illinois. Two more acts effective on Jan. 1, 2013, contain similar bans on all roads for commercial drivers (PA 97-0829) and for all drivers approaching construction and maintenance speed zones (PA 97-0830). (For more, see Illinois Law Update on page 521.)

"Seems to make sense to me," said Anthony E. Rothert, the ex-officio chair who is legal director for the ACLU of Eastern Missouri. This piecemeal approach of legislation aimed at specific kinds of drivers, roads, and circumstances is a step towards the statewide blanket ban proposed in House Bill 3970, which was stalled in the House Rules Committee in March, Rothert said. (See IBJ, March 2012, p. 131.)

"This is a preferable approach to the full ban that's being considered," he said. "This one targets large vehicles and certain locations where it's particularly dangerous to be texting or talking on the phone."

Although not a complete ban, Rothert said the new laws will force all drivers to pay closer attention no matter where they are headed. Rothert acknowledged that the new sections of the Illinois Vehicle Code will apply equally to all drivers within the state - even lawyers.

"I spend a lot of time keeping in touch with my mother during my long commute, and while sitting on the bridge in traffic. …I guess I'd better keep a lookout for flashing lights and construction zones," Rothert said.

Narrowly tailored restrictions

PA 97-0828 amended section 12-610.1(e) of the Vehicle Code to ban hand-held phone use, including texting, within 500 feet of an "emergency scene," which the statute defines as "a location where an authorized emergency vehicle as defined by Section 1-105 of this Code is present and has activated its oscillating, rotating or flashing lights." The only excepted drivers are those engaged in highway construction or maintenance projects, those using a phone for emergency purposes, or those reporting an emergency to authorities.

"One problem with this law is that you might be within 500 feet of emergency vehicles without knowing it," Rothert said. "Five hundred feet is almost two football fields. Especially in a residential area, or even just in heavy traffic - you might be in a traffic jam but you don't know that it's because there's an emergency vehicle 500 feet ahead."

The ban on all hand-held telephone use by commercial drivers contained in PA 97-0829 will apply to all roads in Illinois, no matter where the travel starts or finishes. This intrastate statute piggybacks a national law against interstate truckers and bus drivers using hand-held phones that was imposed in 2010 by the Federal Motor Carrier Safety Administration.

Section 11-605.1 of the Vehicle Code already banned hand-held phone use within a "construction or maintenance speed zone," but PA 97-0830 expands that definition to include any stretch of road where authorities have "posted signage advising drivers that a construction or maintenance speed zone is being approached…"

PA 97-0830 also made a technical amendment to section 12-610.1 to redefine hands-free wireless telephone use as "voice-operated mode, which may include the use of a headset or…a person using a wireless telephone by pressing a single button to initiate or terminate a voice communication." This was previously defined merely as "voice-activated mode."

Beyond creating a new definition of hands-free phone use "that probably 99 percent of phone users won't know what they're talking about," Rothert said the only other potential problems with these laws are uncertainties about enforcement.

"[T]hese kinds of additional specialty criminal laws…give police officers discretion to pull people over. That always disproportionately hits racial minorities and makes it easier for officers to engage in things they shouldn't be doing, like racial profiling," Rothert said. "That being said, the actual restrictions that have passed seem to be narrowly tailored to real dangerous situations."