Legality of using a phone for GPS in Oregon
<p>Oregon recently passed <a href="https://olis.leg.state.or.us/liz/2017R1/Measures/Overview/HB2597" rel="nofollow noreferrer">HB 2957 B</a>, which modifies the law regarding using electronic devices while driving.  From the <a href="https://olis.leg.state.or.us/liz/2017R1/Downloads/MeasureDocument/HB2597" rel="nofollow noreferrer">text of the law</a>, it appears to ban:</p>

<blockquote>
  <p>(a) Holds a mobile electronic device in the person’s hand; or</p>
  
  <p>(b) Uses a mobile [communication] electronic device for any purpose.</p>
</blockquote>

<p>where "Mobile Electronic Device" is defined as the following:</p>

<blockquote>
  <p>(c)(A) “Mobile electronic device” means an electronic device that is not permanently installed
  in a motor vehicle.</p>
</blockquote>

<p>It's later said in the bill that:</p>

<blockquote>
  <p>(4) It is an affirmative defense to a prosecution of a person under this section that the
  person:</p>
  
  <p>...</p>
  
  <p>[(d)] (b) [Is] Was 18 years of age or older and [is] was using a hands-free accessory;</p>
</blockquote>

<p>where "hands-free accessory" is defined as:</p>

<blockquote>
  <p>[(a)] (b) “Hands-free accessory” means an attachment or built-in feature for or an addition to a
  mobile [communication] electronic device[, whether or not permanently installed in a motor vehicle,]
  that when used [allows a person to maintain] gives a person the ability to keep both hands on the
  steering wheel.</p>
</blockquote>

<p>I'm curious about the ramifications this has with using phones as navigation devices specifically.  The following are all common ways to use a phone as a GPS:</p>

<ol>
<li>Holding it in your hand while driving to use it.</li>
<li>Putting the phone in a cupholder and either:

<ul>
<li>Looking at the screen sometimes</li>
<li>Listening to it read out directions to you</li>
</ul></li>
<li>Using some sort of <a href="http://bestsmartphonecases.com/wp-content/uploads/2014/11/GizmoFiend-Phone-Holder-Cell-Phone-Car-Mount-for-iPhone-647-iPhone-6-Plus55-iPhone-55s-Samsung-Note-4-Note-3-Galaxy-S5-S4-S3-Amazon-Fire-Phone-HTC-One-Google-Nexus-GPS-WindshieldDashDesk-SmartPhone-Cr-0-1.jpg" rel="nofollow noreferrer">phone mount</a> to hold your phone, and either looking or listening to the directions.</li>
</ol>

<p>It's my understanding that 1 is undoubtedly illegal under this, but I'm unsure of the legality of 2 and 3.  I'm particularly concerned about the legality of 3 - while it appears to be hands-free accessory, I'm unsure what "an affirmative defense to a prosecution of a person under this section" means.  Moving forward, how could someone interested in using a GPS comply with Oregon law?</p>

<p>An affirmative defense is a way of avoiding conviction by acknowledging you did the act claimed, but that such act was among the exceptions provided by the law which makes such acts otherwise an offence.</p>

<p>That is, you <em>affirm</em> (acknowledge, admit) your action of using the device, but you are claiming that your use of the device (handsfree as a GPS guide) is okay, and therefore you should not be convicted.</p>

<p>For all intents and purposes in this situation, your "2" and "3" are the same thing. The device is supported by something other than you holding it, and you are able to keep both hands on the wheel while using it in this way.</p>

<p>Finally, a plain language reading of the definition for "hands-free accessory" suggests that using an object in the car to support the device where it can be seen, or using a feature of the device that speaks directions which you can hear, neither of which requires moving your hands off the wheel, will be considered such an accessory.</p>

<p>It is also worth pointing out that such usage of a device (placed in a cradle or on the dashboard or turned up so it is heard) will be well-known to the legislators, and there is a reasonable interpretation of the law that would allow such usage.</p>

<p>If this ever went to court, and somebody used this defence for this situation, they would probably be okay.</p>

<p>This is a situation where the wording of the law is unclear, so "meaning" must be created out of supposed judicial intent, which is always a dangerous enterprise. Relevant case law is <a href="http://www.publications.ojd.state.or.us/docs/A156353.pdf" rel="nofollow noreferrer">State v. Rabanales-Ramos</a>, under a prior version of the law. In that case, the issue arises as to the meaning of "use", and the court says</p>

<blockquote>
  <p>the context of ORS 811.507(2), including the other provisions of ORS
  811.507, suggests that the meaning of the term “uses” in ORS 811.507(2) is limited to use of a mobile communication device for the purpose of voice or text communication. See PGE, 317 Or at 611
  (context of a statutory provision includes other provisions of the
  same statute). First, we note that the definition of “mobile
  communication device” set forth in ORS 811.507(1) is “a text messaging
  device or a wireless, two-way communication device designed to receive
  and transmit voice or text communication.” (Emphases added.) That
  definition suggests that the activity that the legislature intended to
  address was using a mobile communication device for voice or text
  communication. The legislature did not include in its definition of
  “mobile communication device” a device incapable of receiving and
  transmitting voice or text communication, such as a hand-held GPS
  mapping device or music-playing device, which suggests that the
  legislature did not intend to broadly prohibit the use of any mobile
  device for any purpose; rather, the legislature intended to address
  the specific act of communicating, by voice or text, using a mobile
  communication device. Furthermore, the lack of any reference in the
  statute to possible functions of a mobile communication device apart
  from receiving and transmitting voice or text communication, such as
  playing music or getting directions, suggests that the legislature did
  not contemplate the application of ORS 811.507 to such functions.</p>
</blockquote>

<p>The definitions in the earlier law included:</p>

<blockquote>
  <p>“(a) ‘Hands-free accessory’ means an attachment or built-in feature
  for or an addition to a mobile communication device, whether or not
  permanently installed in a motor vehicle, that when used allows a
  person to maintain both hands on the steering wheel.</p>
  
  <p>“(b) ‘Mobile communication device’ means a text messaging device or a
  wireless, two-way communication device designed to receive and
  transmit voice or text communication.</p>
</blockquote>

<p>By framing the law in terms of "mobile communications device", it was deemed by the court that the legislature intended the restriction to be about communicative uses.</p>

<p>The recent change in the law clearly expands the scope of the prohibition, with respect to uses, because it now refers to "mobile electronic devices" and explicitly mentions navigation. Then the question is what constitutes a "hands-free device". Regarding the cup-holder option, the question would be whether a cup-holder is "an attachment or built-in feature for or an addition to a mobile electronic device". A plain language analysis would indicate that a cup-holder is <em>not</em> an attachment or built-in feature for an electronic device, nor is it an addition to a mobile electronic device. However, a dash mount would be (though legislative intent may have been more restrictive). To override the plain words of a statute, there must be compelling evidence of a contrary legislative intent.</p>

<p>Additionally, we must assign some meaning to the changed wording "gives a person the ability to keep", as contrasted with allowing to maintain – we have to assume that the legislature meant something, in changing those words. This suggests that the hands-free device has to actively contribute to the ability to keep both hands on the wheel, in the way that a blue tooth device would. Actually holding a cell phone in your hands would also "allow" a person to have both hands on the wheel, but such an action conflicts with the plain meaning of "hands-free". We have to conclude, then, that the legislature did not just mean "as long as both hands are on the wheel".</p>

<p>There is testimonial evidence, from <a href="https://olis.leg.state.or.us/liz/2017R1/Downloads/CommitteeMeetingDocument/135397" rel="nofollow noreferrer">6-22</a> (and similar support and opposition during that hearing), that the Senate was aware of the interpretation that the law "will punish drivers who currently make an effort to utilize their mobile electronics in the least-distracting means possible, by mounting them in lieu of an in-dash display", but the bill remain un-amended. We can contrast the fact that nothing was changed in any version of the bill with respect to the phone-qua-GPS issue in light of testimony objecting to restricting such temporary dash-mount use, to the fact that there was also testimony pertaining to limitations on radio communication under the <a href="https://olis.leg.state.or.us/liz/2017R1/Downloads/MeasureDocument/HB2597/House%20Amendments%20to%20Introduced" rel="nofollow noreferrer">House version of the bill</a>, whereby the <a href="https://olis.leg.state.or.us/liz/2017R1/Downloads/MeasureDocument/HB2597/Senate%20Amendments%20to%20A-Engrossed" rel="nofollow noreferrer">amended Senate version</a> and the final version expanded subsection (2) to allow such uses. As <a href="https://olis.leg.state.or.us/liz/2017R1/Downloads/CommitteeMeetingDocument/100886" rel="nofollow noreferrer">this (early) testimony</a> indicates, "if it is not permanently installed, then it is prohibited" (Senator Prozanski <a href="http://oregon.granicus.com/MediaPlayer.php?clip_id=24005" rel="nofollow noreferrer">in his testimony</a> around 5:30 in confirms the distinction between built-in devices vs. cell phones and the like, in that a built-in device is not a "mobile electronic device", thus not restricted. </p>

<p>In other words, we can conclude that the legislature was aware that the law would restrict use of dash-mount devices as surrogates for built-in GPS (which is allowed), and chose <em>not</em> to change the language of the bill: that such a restriction would not be an unintended consequence. As we know, legislative-intent arguments are often facile, but the court did rely on such facile arguments to reach the earlier conclusion that the law only addressed communicative uses.</p>

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