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Richmond’s Ban on Handheld Devices Is Now in Effect – Virginia Statewide Law to Follow in 2021

Last year, we reported (link: https://www.setlifflaw.com/news/2019/12/richmond-city-voting-to-join-spotsylvania-county-and-hampton-city-in-banning-handheld-cell-phone-use-while-driving/) that Richmond voted to adopt an ordinance banning handheld cell phone use while driving. The day of reckoning is upon us – as of June 8, 2020, the ordinance has officially gone into effect. The full text is as follows:

Sec. 27-40.1. Distracted driving.

(a) Any person who drives a motor vehicle on any public street or highway in the city while using any handheld personal communications device is guilty of distracted driving.

(b) The provisions of this section shall not apply to an operator (i) of any emergency vehicle while the operator is engaged in the performance of the operator’s official duties; (ii) who is lawfully stopped or parked; (iii) who is using a handheld personal communications device to report an emergency; or (iv) who is using a handheld radio-based communications device during an emergency or disaster relief operation.

(c) A violation of this section shall constitute a separate and distinct offense. The provisions of this section shall not preclude prosecution under any other statute or ordinance.

(d) A violation of this section is a traffic infraction punishable for a first offense by a fine of $125.00 and for a second or subsequent offense by a fine of $250.00, which shall be paid to the City treasury.

The Virginia legislature recently passed a similar law, Virginia Code § 46.2-818.2, which is slated to go in effect in early 2021 (link: https://lis.virginia.gov/cgi-bin/legp604.exe?201+ful+CHAP0250+pdf). The operative portion of the new State law reads, in relevant part: “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.”

Here’s a quick chart comparing the two (differences are in bold)

Richmond Ordinance Sec. 27-40.1 Virginia Code § 46.2-818
  • In effect now
  • Takes effect January 1, 2021
  • Enforceable within Richmond City limits
  • Enforceable on Virginia highways
  • Prohibits “using” handheld personal communications device, which would, potentially:
    • Prohibit hands-free GPS
    • Prohibit hands-free calls / texts
    • Prohibit hands-free music
    • Prohibit hands-free video
    • Allow carrying your phone in your hand without doing anything with it
  • Prohibits “holding” handheld personal communications device, which would, potentially:
    • Allow hands-free GPS
    • Allow hands-free calls / texts
    • Allow hands-free music
    • Allow hands-free video
    • Prohibit carrying your phone in your hand without doing anything with it
  • Exempts on-duty emergency vehicles
  • Exempts on-duty emergency vehicles and DOT traffic incident management vehicles
  • Exempts lawfully stopped or parked vehicles
  • Exempts lawfully stopped or parked vehicles
  • Exempts emergency reporting
  • Exempts emergency reporting
  • Exempts use of amateur radio during an emergency/disaster
  • Exempts use of amateur radio for any reason
  • Carries a $125 initial fine and a $250 secondary fine
  • Carries a $125 initial fine and a $250 secondary fine, but carries an additional $250 fine for work zones

It is currently unclear how broadly the Richmond ordinance will be defined and enforced. As currently written, arguably, using your cell phone in a hands-free cradle for personal GPS or Bluetooth music would be a violation of the ordinance. This would be particularly harmful to rideshare drivers (such as for Uber or Lyft), who rely on the use of proprietary phone applications while driving to pick up passengers and navigate to destinations. Now, one could make the argument that the passive “use” of the phone to stream music to your car stereo or display GPS without the driver’s active interaction should not be considered “using” for purposes of the statute. However, we do not currently have additional binding guidance or interpretation from the City of Richmond or courts.

If you have questions about this article, please contact Matthias Kaseorg (mkaseorg@setlifflaw.com) at 804-377-1273 or Steve Setliff (ssetliff@setlifflaw.com) at 804-377-1261.

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