SB 438 Text

Introduced Version « Senate Bill 438 History

Key: Green = existing Code. Red = new code to be enacted

Senate Bill No. 438
(By Senators Unger, Jenkins, Fanning, Plymale, White, Barnes, Palumbo, McCabe, D. Facemire, Laird, Foster, Edgell, Kessler and Wells)
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[Introduced February 2, 2010; referred to the Committee on Transportation and Infrastructure; and then to the Committee on the Judiciary.]
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A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §17C-14-15, relating to establishing the misdemeanor offenses of operating a motor vehicle while writing, reading or sending a text-based communication and using a wireless communication device to send or receive conversation; providing exceptions; providing definitions; establishing criminal penalties; and limiting enforcement of the offense of driving while using a cellular telephone.

Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §17C-14-15, to read as follows:
ARTICLE 14. MISCELLANEOUS RULES.
§17C-14-15. Writing, sending or reading a text message by means of a wireless communications device and verbal communication on a cellular phone while driving unlawful; definitions; exceptions; penalties.
(a) The use of a wireless communications device by an operator of a moving motor vehicle on a public road or highway to write, send or read a text-based communication is unlawful. A person is not writing, sending or reading a text message when he or she is reading, selecting or entering a phone number or name in a wireless communications device for the purpose of making a phone call.
(b) The use of a wireless communications device for the purpose of receiving or sending conversation by an operator of a moving motor vehicle on a public road or highway is unlawful except when the wireless communication device is a hands-free wireless communication device being used hands-free, provided that its placement does not interfere with the operation of federally required safety equipment and the operator exercises a high degree of caution in the operation of the motor vehicle.
(c) The provisions of this section do not apply to a driver who uses a wireless communication device when:
(1) The driver immediately fears for his, her or another person's life or safety, or the driver believes that he, she or another person is, or is about to become, the victim of a criminal act;
(2) The driver uses the wireless communication device to contact law-enforcement authorities, emergency personnel for the purpose of reporting criminal activity, a fire, a traffic accident, a serious road hazard, a medical emergency, a hazardous materials emergency or any other condition which threatens bodily injury, public health, welfare or safety; or
(3) Acting in the course and scope of his or her employment as an emergency services personnel, the driver is responding to an emergency situation while operating an authorized emergency vehicle, as defined in section six, article one of this chapter.
(d) The provisions of this section do not apply to any person under the age of eighteen who operates a motor vehicle pursuant to section three-a, article two, chapter seventeen-b of this code.
(e) As used in this section:
(1) "Hands-free wireless communication device" means a wireless communication device equipped with an internal feature or function, or an attachment or addition, whether or not permanently part of the device, by which a user engages in a conversation, sends or receives a message, interchanges information or otherwise communicates without the use of either hand: Provided, That this definition does not preclude the use of either hand to activate, deactivate or initiate a function of the device;
(2) "Use a wireless communication device" means to verbally or visually converse, message or otherwise interchange information, including utilization of the Internet on a wireless communication device, whether by audio or video communication, telephone, text messaging or any other form of electronic communication; and
(3) "Wireless communication device" means a cellular, analog, wireless or digital device, computer or telephone capable of accessing, sending or receiving wireless electronic messages, conversation or other interchange of information, including, but not limited to, a wireless telephone service, a wireless Internet service or a wireless text messaging service. A "wireless 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.
(f) Any person who violates the provisions of subsection (a)of this section is guilty of a misdemeanor and, upon conviction thereof, shall for a first offense be fined $50; for a second offense be fined $100; and for a third or subsequent offense be fined $200. No court costs or other fees shall be assessed for a violation of subsection (a).
(g) Any person who violates the provisions of subsection (b)of this section is guilty of a misdemeanor and, upon conviction thereof, shall for a first offense be fined $25; for a second offense be fined $50; and for a third or subsequent offense be fined $75. No court costs or other fees shall be assessed for a violation of subsection (b).
(h) Enforcement of subsection (b) of this section may be accomplished only as a secondary action when a driver has been detained for probable cause of violating another section of this code or a municipal ordinance.
(i) Notwithstanding any other provision of this code to the contrary, no points may be entered on any driver's record maintained by the Division of Motor Vehicles as a result of a violation of this section.

NOTE: The purpose of this bill is to create the misdemeanor offenses of operating a motor vehicle while writing, reading or sending a text-based communication and using a wireless communication device to send or receive conversation while operating a motor vehicle and establishing criminal penalties.

§17C-14-15 is new; therefore, strike-throughs and underscoring have been omitted

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