H. B. 4266
(By Delegates Staton, Douglas and Mahan)
[Introduced January 28, 2002; referred to the
Committee on the Judiciary.]
A BILL to amend article fourteen, chapter seventeen-c of the code
of West Virginia, one thousand nine hundred thirty-one, as
amended, by adding thereto a new section, designated section
fifteen, relating to creating the criminal offense of the
unlawful use of mobile telephones and providing penalties.
Be it enacted by the Legislature of West Virginia:
That article fourteen, chapter seventeen-c of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto a new section, designated section
fifteen, to read as follows:
ARTICLE 14. MISCELLANEOUS RULES.
§17C-14-15. Unlawful use of a mobile telephone; penalty.
(a) As used in this section:
(1) "Commercial mobile radio service" means a mobile service
that is:
(A) Provided for profit;
(B) An interconnected service; and
(C) Available to the public, or to classes of eligible users
as to be effectively available to a substantial portion of the
public.
(2) "Engage in a call" means talking into or listening on a
hand-held mobile telephone: Provided, That "engage in a call" does
not include holding a mobile telephone to activate, deactivate or
initiate a function of the telephone.
(3) "Hand-held mobile telephone" means a mobile telephone with
which a user engages in a call using at least one hand.
(4) "Hands-free mobile telephone" means a mobile telephone
that has an internal feature or function, or that is equipped with
an attachment or addition, whether or not permanently part of a
mobile telephone, by which a user engages in a call without the use
of either hand, whether or not the use of either hand is necessary
to activate, deactivate or initiate a function of the telephone.
(5) "Immediate proximity" means a distance as permits the
operator of a mobile telephone to hear telecommunication transmitted over a mobile telephone. "Immediate proximity" does not
require physical contact with the operator's ear.
(6) "Mobile service" means a radio communication service
carried on between mobile stations or receivers and land stations,
and by mobile stations communicating among themselves, and
includes:
(A) Both one-way and two-way radio communications services;
(B) A mobile service which provides a regularly interacting
group of base, mobile, portable, and associated control and relay
stations for private one-way or two-way land mobile radio
communications by eligible users over designated areas of
operation; and
(C) Any service for which a license is required in a personal
communications service under federal law.
(7) "Mobile telephone" means any device used by subscribers
to access wireless telephone service.
(8) "Wireless telephone service" means two-way real-time voice
telecommunications service that is interconnected to a public
switched telephone network and is provided by a commercial mobile
radio service.
(9) "Using" means holding a mobile telephone to, or in the immediate proximity of, the user's ear.
(b) Unless otherwise provided by this section, no person may
operate a motor vehicle while using a mobile telephone to engage in
a call.
(c) An operator of a motor vehicle who holds a mobile
telephone to, or in the immediate proximity of his or her ear while
the vehicle is in motion is presumed to be engaging in a call
within the meaning of this section. This presumption is rebuttable
by evidence tending to show that the operator was not engaged in a
call.
(d) The provisions of this section may not be construed to
authorize the seizure or forfeiture of a mobile telephone.
(e) The provisions of this section do not apply to the use of
a mobile telephone to engage in a call while operating a motor
vehicle when the mobile telephone is being used for the sole
purpose of communicating an emergency situation to any of the
following:
(1) An emergency response operator;
(2) A hospital, physician's office or health clinic;
(3) An ambulance company;
(4) A fire department or an individual member of the fire department, while in the performance of his or her duties; or
(5) A police department or an individual police officer, while
in the performance of his or her duties;
(f) The provisions of this section do not apply to the use of
a mobile telephone to engage in a call while operating a motor
vehicle if the operator of the motor vehicle is using a hands-free
mobile telephone to engage in the call.
(g) Any person violating the provisions of this section is
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not more than five hundred dollars.
(h) The court shall waive any fine imposed against any person
for a violation of the provisions of this section if he or she
supplies the court with proof that, between the date on which he or
she is charged with the violation and the appearance date for the
violation, he or she possesses a hands-free mobile telephone:
Provided, That this subsection does not apply to any person who has
been previously convicted of a violation of the provisions of this
section.
NOTE: The purpose of this bill is to create the criminal
offense of the unlawful use of a mobile telephone.
This section is new; therefore, strike-throughs and underscoring have been omitted.