Great Falls cell phone rule challenged in municipal court as unconstitutional

What started as a ticket for using a cell phone while driving is now a constitutional challenge to a city ordinance, which is likely to renew debate over the legality and effectiveness of such rules.

Stacie Azure was stopped on July 29, 2018 by a Great Falls Police Department officer because she had a cell phone in her right hand, according to court documents.

She was cited for violating the city’s cell phone ordinance, driving while license suspended and for failing to carry proof of insurance.

According to a motion filed by Cayle Halberg, a public defender, the reason for the traffic stop was the alleged cell phone violation.

Halberg’s motion asked the Municipal Court to invalidate Ordinance 3146 as unconstitutional.

In 2012, the city enacted rules that prohibit the use of hand-held devices while driving with Ordinance 3090. In 2016, the City Commission adopted Ordinance 3146, which strengthened the penalties for violations, but it does not include the regulations Halberg is challenging in his motion.

The city attorney’s office is currently drafting a response to the motion and a hearing is tentatively set for Jan. 15.

The constitutional challenge will likely rise to at least the district court level on appeal.

In his motion, Halberg challenges the city’s cell phone rules on the grounds of free speech, being overly broad, equal protection and more.

“The banning of cellphones is clearly not a compelling state interest. If it were, the Montana Legislature would have enacted legislation curbing cellphone use while operating a motor vehicle,” Halberg wrote. “There is not even a ban on texting while driving in the state of Montana.”

But, there have been attempts to enact such legislation over the last decade.

In 2009, the Montana Senate rejected a bill that would have banned the used of handheld devices while driving by a vote of 32-17, according to the Billings Gazette.

In the 2015 legislative session, Rep. Virginia Court, D-Billings, introduced a bill to ban texting while driving that came within one vote of passing, according to the Missoulian, but during the last session, the bill didn’t make it out of the Judiciary Committee though no one spoke in opposition to the bill.

Last year, the Advocates for Highway and Auto Safety found that Montana is “dangerously behind” in adopting laws for traffic safety, to include distracted driving laws, and gave the state a failing grade.

Great Falls is not the only city with distracted driving regulations and the Montana Department of Transportation actively promotes their Vision Zero campaign, and states on its website that “texting while driving is one of the most dangerous of all distracted driving activities, because it takes your hands off the wheel and eyes and mind off the road.”

According to MDT, these cities, towns and reservations have bans on the use of handheld cell phones while driving: Anaconda/Deer Lodge, Baker, Billings, Bozeman, Butte/Silver Bow, Columbia Falls, Fort Peck, Hamilton, Havre, Helena, Missoula and Whitefish.

So far, none of those regulations appear to have faced constitutional challenges and many are similar to the Great Falls rules and have been in place for about the same amount of time.

Missoula did update their cell phone ordinance in 2016 to remove ambiguities as requested by the city prosecutor’s office to improve enforcement. Over the time that ordinance has existed in Missoula, a number of exemptions have been removed, including the exemption for law enforcement. The city originally enacted a ban on texting while driving in 2009 and expanded the regulations in 2012.

The Missoula ordinance exempts drivers who are “pressing a single button to initiate or terminate a voice communication using a mobile telephone;” using a two-way radio in the performance and scope of work-related duties; and does not apply to the operation of an amateur radio station by a person who holds a valid amateur radio operator license issued by the Federal Communications Commission.

The Missoulian reported in 2016 that the city police department had an internal policy banning officers from using handheld cell phones on duty since their cars are equipped with hands-free devices.

The Great Falls Police Department has the same internal policy and the new patrol cars are equipped with bluetooth, according to GFPD officials.

Billings adopted its cell phone ordinance in 2010 and has the same exemptions as the Great Falls ordinance. At the time, the Billings Police Department purchased hands-free devices for every department issued cell phone and the chief said he expected officers to set the example even though they’re exempt under the ordinance, according to the Billings Gazette.

The Billings ordinance has not been updated since it was adopted in 2010.

Bozeman adopted the same provision defining use in 2011 and includes the same exemptions that have not been updated since.

There have been calls for national bans as well.

  • In 2009, the National Safety Council called for a national ban on using handheld devices while driving.
  • In 2011, the National Transportation Safety Board recommended Tuesday that all states and the District of Columbia ban cellphone use behind the wheel, according to a Washington Post article.
  • Since at least 2010, there have been multiple bills in Congress aimed at curbing distracted driving in some way. Some have proposed distracted driving education grants, others have proposed withholding federal transportation funding from states that don’t have or enforce rules for handheld cell phone use while driving.

During the last legislative session, a bill was proposed that would prevent any local governments in Montana from establishing regulations related to cell phone use while driving. Great Falls officials opposed the bill, arguing it would restrict local control.

The bill failed, but some other states have similar laws including: Florida, Iowa, Kentucky, Louisiana, Mississippi, Nevada, Pennsylvania, Oklahoma, Oregon and South Carolina, according to the Governors Highway Safety Association.

All of those states have a statewide texting ban.

Kentucky also bans cell phone use for bus drivers and drivers under 18; Louisiana bans handheld phone use for drivers with a learner or intermediate license regardless of age and for bus drivers; Mississippi bans cell phone use for bus drivers; Nevada has a statewide handheld ban; Oklahoma bans handheld phone use for drivers with a learners or intermediate license; and Oregon has a statewide ban on handheld cell use, according to the GHSA.

Nationwide, 16 states, as well as Washington D.C., Puerto Rico, Guam and the U.S. Virgin Islands prohibit all drivers from using hand-held cell phones while driving and all are primary enforcement laws, meaning an office can cite a driver for using a cell phone while driving without any other traffic offense taking place, according to the GHSA.

Twenty states and D.C. ban handheld cell phone use for school bus drivers and 38 states plus D.C. ban all cell phone use by novice drivers; 47 states, plus D.C., Puerto Rico, Guam and the U.S. Virgin Islands ban text messaging for all drivers. Of the three states without an all driver texting ban, two prohibit text messaging by novice drivers, according to the GHSA.

According to Halberg’s motion, the Great Falls ordinance restricts free speech and violates equal protection since it provides exceptions to some drivers based on their occupation.

The Great Falls exemptions to the handheld cell phone ban include:

  • Any person reporting a health, fire, safety or police emergency;
  • any governmental fire agencies, ambulance services, law enforcement agencies, emergency responders, or any other authorized emergency vehicle as defined by Montana law;
  • operators or passengers of a motorized vehicles using a handheld electronic communication device while in a parking lane or space out of moving traffic lanes;
  • drivers using two way radios while in the performance and scope of their work-related duties, or to drivers holding a valid amateur radio operator licence issued by the Federal Communications Commission while using a two way radio.

Halberg argues that because the city’s ordinance does not narrowly tailor its emergency personnel exception to the performance of work-related duties so they are free to be on their personal cell phones and initiate personal calls the ordinance’s classifications “impermissibly discriminate” and treat emergency personnel differently than all other drivers.

Halberg wrote that the ordinance also treats truck drivers differently “ostensibly due to the economic activity underlying the transportation,” but does not exempt other economic actors such as taxi drivers or food delivery personnel.

Many ordinances exempt drivers using two-way radios since their use does not require drivers to look away from the road to operate the single button device.

“The alleged purpose of Ordinance 3146 is directly contradicted by its very text, its exceptions, and the goal of the ordinance is frustrated thereby-which, by operation of constitutional maxims, renders Ordinance 3146 constitutionally infirm. Accordingly, all things considered, the means of Ordinance 3146 are not reasonably related to its stated purpose of curbing distracted driving, and it impermissibly classifies individuals into different classes of drivers and treats the classes differently with no legitimate purpose for disparate treatment,” Halberg wrote.

In the motion, Halberg writes that the city’s ordinance is “unconstitutionally vague” because a reasonable person cannot discern what speech is prohibited and what speech is permitted.

He writes that “use” of not defined and is ambiguous and argues that the ordinance is being inconsistently applied since in one 2018 case, a Great Falls officer cited a driver after observing him holding a cell phone but the officer did not see the driver manipulate the screen or see his lips moving.

In the motion, Halberg quotes a news article in which Assistant City Attorney Joseph Cik said during testimony at the Legislature that the the city issued more than 1,200 tickets in 2016, which was almost triple the speeding tickets.

That was the year the city adopted stricter penalties for violating the cell phone ordinance.

In 2018, GFPD issued 423 citations for cell phone violations, according to Chief Dave Bowen. Of those, 397 has been entered into the Municipal Court’s system by the end of the calendar year with fines totaling $71,598, according to court records.

By Jan. 8, 2019, one cell phone violation ticket had been entered in to the city court system with a $215 fine.

Halberg also argues that the overbreadth of the city’s ordinance is substantial because it states that no person operated a motorized vehicle or bicycle on a public highway within the city limits shall use a cell phone to engage a call and/or use any other handheld electronic communication device to compose, send, view or retrieve email, a text message or other electronic data.

He argues that because phones are generally retrieving data all the time, unless they’re powered off or in airplane mode, so no matter where in the vehicle the phone is, a driver is in violation of the ordinance.

The Billings ordinance specifically states that no driver can have a handheld device within their immediate physical possession and defines that as touching the device, physically holding it or having it up to one’s ear. Simply having it on one’s person or in the vehicle does not constitute a violation, according to the Billings ordinance.

The Great Falls ordinance does not include that specific language identifying what constitutes a violation.

In opposition to various regulations regarding cell phone use while driving, some have argued that studies show the laws don’t curb crashes, but researches have cautioned that crash and insurance data might not accurately reflect the actual incident rates since it’s difficult to prove and drivers won’t typically admit to using their phone while driving if it’s illegal.

A 2014 study by the Association for Advancement of Automotive Medicine, as published on the U.S. National Library of Medicine website, states that most U.S. states have laws limiting cell phone use while driving and “the evidence suggests that all-driver bans on hand-held phone conversations have resulted in long-term reductions in hand-held phone use, and drivers in ban states reported higher rates of hands-free phone use and lower overall phone use compared with drivers in non-ban states.”

But in terms of the effects of bans on crashes, the study looked at 11 peer-reviewed papers that focused on all-driver handheld phone and texting bans were reviewed. Some focused on single states, others focused on national or multi-state studies, but the results varied widely according to the 2014 study and “thus, despite the proliferation of laws limiting drivers’ cellphone use, it is unclear whether they are having the desired effects on safety.”

The Highway Loss Data Institute released a study in 2010 that studied four jurisdictions and concludes that bans on cell phone use while driving didn’t reduce crashes.

In response to the HLDI study, then U.S. Transportation Secretary Ray LaHood said the study was misleading and the group had been working to discredit national anti-distracted driving efforts. At the time, LaHood issued a ban on texting for commercial truck and bus drivers that remains in effect today.