First Substitute S.B. 149

This document includes Senate 2nd Reading Floor Amendments incorporated into the bill on Tue, Feb 24, 2009 at 4:18 PM by rday. --> This document includes Senate 3rd Reading Floor Amendments incorporated into the bill on Wed, Feb 25, 2009 at 12:19 PM by rday. -->

Senator Lyle W. Hillyard proposes the following substitute bill:

1 PROHIBITION OF TEXT MESSAGING OR
2 ELECTRONIC MAIL COMMUNICATION WHILE
3 DRIVING
4 2009 GENERAL SESSION
5 STATE OF UTAH
6 Chief Sponsor: Lyle W. Hillyard
7 House Sponsor: Kay L. McIff
8
9 LONG TITLE
10 General Description:
11 This bill modifies the Motor Vehicles Code, the Uniform Driver License Act, and the
12 Criminal Code by amending provisions relating to the use of a handheld wireless
13 communication device for text messaging or electronic mail communication while
14 operating a moving motor vehicle.
15 Highlighted Provisions:
16 This bill:
17 . prohibits a person from using a handheld wireless communication device for text
18 messaging or electronic mail communication while operating a moving motor
19 vehicle on a highway in this state;
20 . provides exceptions to the handheld wireless communication device prohibition;
21 . provides penalties for violating the prohibition on using a handheld wireless
22 communication device for text messaging or electronic mail communication while
23 operating a moving motor vehicle;
24 . provides that criminal homicide is automobile homicide if a person operates a
25 moving vehicle in a negligent or criminally negligent manner causing the death of

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another and was using a handheld wireless communication device for text messaging or
27 electronic mail communication at the time of operation;
28 . provides penalties for automobile homicide in certain circumstances;
29 . provides that a judge S. [ or justice ] .S may order that a person's driver license be
29a suspended
30 for three months upon conviction S. for a violation .S of the prohibition on using a handheld
30a wireless
31 communication device for text messaging or electronic mail communication while
32 operating a moving motor vehicle;
33 . requires the Driver License Division to immediately revoke, deny, suspend, or
34 disqualify a person's license upon receiving a record of the person's conviction of
35 automobile homicide while using a handheld wireless communication device for
36 text messaging or electronic mail communication; and
37 . makes technical changes.
38 Monies Appropriated in this Bill:
39 None
40 Other Special Clauses:
41 None
42 Utah Code Sections Affected:
43 AMENDS:
44 53-3-218, as last amended by Laws of Utah 2006, Chapter 18
45 53-3-220, as last amended by Laws of Utah 2008, Chapters 3, 226, and 296
46 ENACTS:
47 41-6a-1716, Utah Code Annotated 1953
48 76-5-207.5, Utah Code Annotated 1953
49
50 Be it enacted by the Legislature of the state of Utah:
51 Section 1. Section 41-6a-1716 is enacted to read:
52 41-6a-1716. Prohibition on using a handheld wireless communication device for
53 text messaging communication while operating a moving motor vehicle -- Penalties.
54 (1) As used in this section:
55 (a) (i) "Handheld wireless communication device" means a handheld device used for
56 the transfer of information without the use of electrical conductors or wires.

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- 3 - 57 (ii) "Handheld wireless communication device" includes a:
58 (A) wireless telephone;
59 (B) personal digital assistant;
60 (C) pager; or
61 (D) text messaging device.
62 (b) "Text messaging" has the same meaning as defined in Section 76-4-401 .
63 (2) Except as provided in Subsection (3), a person may not use a handheld wireless
64 communication device for text messaging or electronic mail communication while operating a
65 moving motor vehicle on a highway in this state.
66 (3) Subsection (2) does not prohibit a person from using a handheld wireless
67 communication device while operating a moving motor vehicle:
68 (a) during a medical emergency;
69 (b) when reporting a safety hazard or requesting assistance relating to a safety hazard;
70 (c) when reporting criminal activity or requesting assistance relating to a criminal
71 activity; or
72 (d) when used by a law enforcement officer or emergency service personnel acting
73 within the course and scope of their employment.
74 (4) A person convicted the first or second time of a violation of this section is guilty of
75 a:
76 (a) class B misdemeanor; or
77 (b) class A misdemeanor if the person has also inflicted bodily injury upon another as a
78 proximate result of using a handheld wireless communication device for text messaging or
79 electronic mail communication while operating a moving motor vehicle on a highway in this
80 state.
81 (5) A person convicted of a violation of this section is guilty of a third degree felony if:
82 (a) the person has also inflicted serious bodily injury upon another as a proximate
83 result of using a handheld wireless communication device for text messaging or electronic mail
84 communication while operating a moving motor vehicle on a highway in this state;
85 (b) the person has two or more prior convictions under this section, each of which is
86 within ten years of:
87 (i) the current conviction under this section; or

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- 4 - 88 (ii) the commission of the offense upon which the current conviction is based; or
89 (c) the conviction of this section is at any time after a conviction of automobile
90 homicide under Section 76-5-207.5 .
91 Section 2. Section 53-3-218 is amended to read:
92 53-3-218. Court to report convictions and may recommend suspension of license
93 -- Severity of speeding violation defined.
94 (1) As used in this section, "conviction" means conviction by the court of first
95 impression or final administrative determination in an administrative traffic proceeding.
96 (2) (a) A court having jurisdiction over offenses committed under this chapter or any
97 other law of this state, or under any municipal ordinance regulating driving motor vehicles on
98 highways or driving motorboats on the water, shall forward to the division within ten days, an
99 abstract of the court record of the conviction or plea held in abeyance of any person in the court
100 for a reportable traffic or motorboating violation of any laws or ordinances, and may
101 recommend the suspension of the license of the person convicted.
102 (b) When the division receives a court record of a conviction or plea in abeyance for a
103 motorboat violation, the division may only take action against a person's driver license if the
104 motorboat violation is for a violation of Title 41, Chapter 6a, Part 5, Driving Under the
105 Influence and Reckless Driving.
106 (3) The abstract shall be made in the form prescribed by the division and shall include:
107 (a) the name, date of birth, and address of the party charged;
108 (b) the license certificate number of the party charged, if any;
109 (c) the registration number of the motor vehicle or motorboat involved;
110 (d) whether the motor vehicle was a commercial motor vehicle;
111 (e) whether the motor vehicle carried hazardous materials;
112 (f) whether the motor vehicle carried 16 or more occupants;
113 (g) whether the driver presented a commercial driver license;
114 (h) the nature of the offense;
115 (i) whether the offense involved an accident;
116 (j) the driver's blood alcohol content, if applicable;
117 (k) if the offense involved a speeding violation:
118 (i) the posted speed limit;

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(ii) the actual speed; and
120 (iii) whether the speeding violation occurred on a highway that is part of the interstate
121 system as defined in Section 72-1-102 ;
122 (l) the date of the hearing;
123 (m) the plea;
124 (n) the judgment or whether bail was forfeited; and
125 (o) the severity of the violation, which shall be graded by the court as "minimum,"
126 "intermediate," or "maximum" as established in accordance with Subsection 53-3-221 (4).
127 (4) When a convicted person secures a judgment of acquittal or reversal in any
128 appellate court after conviction in the court of first impression, the division shall reinstate his
129 license immediately upon receipt of a certified copy of the judgment of acquittal or reversal.
130 (5) Upon a conviction S. for a violation .S of the prohibition on using a handheld
130a wireless communication
131 device for text messaging or electronic mail communication while operating a moving motor
132 vehicle under Section 41-6a-1716 , a judge S. [ or justice ] .S may order a suspension of the
132a convicted
133 person's license for a period of three months.
134 Section 3. Section 53-3-220 is amended to read:
135 53-3-220. Offenses requiring mandatory revocation, denial, suspension, or
136 disqualification of license -- Offense requiring an extension of period -- Hearing --
137 Limited driving privileges.
138 (1) (a) The division shall immediately revoke or, when this chapter or Title 41, Chapter
139 6a, Traffic Code, specifically provides for denial, suspension, or disqualification, the division
140 shall deny, suspend, or disqualify the license of a person upon receiving a record of the person's
141 conviction for:
142 (i) manslaughter or negligent homicide resulting from driving a motor vehicle, or
143 automobile homicide under Section 76-5-207 or 76-5-207.5 ;
144 (ii) driving or being in actual physical control of a motor vehicle while under the
145 influence of alcohol, any drug, or combination of them to a degree that renders the person
146 incapable of safely driving a motor vehicle as prohibited in Section 41-6a-502 or as prohibited
147 in an ordinance that complies with the requirements of Subsection 41-6a-510 (1);
148 (iii) driving or being in actual physical control of a motor vehicle while having a blood
149 or breath alcohol content prohibited in Section 41-6a-502 or as prohibited in an ordinance that

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- 6 - 150 complies with the requirements of Subsection 41-6a-510 (1);
151 (iv) perjury or the making of a false affidavit to the division under this chapter, Title
152 41, Motor Vehicles, or any other law of this state requiring the registration of motor vehicles or
153 regulating driving on highways;
154 (v) any felony under the motor vehicle laws of this state;
155 (vi) any other felony in which a motor vehicle is used to facilitate the offense;
156 (vii) failure to stop and render aid as required under the laws of this state if a motor
157 vehicle accident results in the death or personal injury of another;
158 (viii) two charges of reckless driving, impaired driving, or any combination of reckless
159 driving and impaired driving committed within a period of 12 months; but if upon a first
160 conviction of reckless driving or impaired driving the judge or justice recommends suspension
161 of the convicted person's license, the division may after a hearing suspend the license for a
162 period of three months;
163 (ix) failure to bring a motor vehicle to a stop at the command of a peace officer as
164 required in Section 41-6a-210 ;
165 (x) any offense specified in Part 4, Uniform Commercial Driver License Act, that
166 requires disqualification;
167 (xi) a felony violation of Section 76-10-508 or 76-10-508.1 involving discharging or
168 allowing the discharge of a firearm from a vehicle;
169 (xii) using, allowing the use of, or causing to be used any explosive, chemical, or
170 incendiary device from a vehicle in violation of Subsection 76-10-306 (4)(b);
171 (xiii) operating or being in actual physical control of a motor vehicle while having any
172 measurable controlled substance or metabolite of a controlled substance in the person's body in
173 violation of Section 41-6a-517 ;
174 (xiv) until July 30, 2015, operating or being in actual physical control of a motor
175 vehicle while having any alcohol in the person's body in violation of Section 53-3-232 ;
176 (xv) operating or being in actual physical control of a motor vehicle while having any
177 measurable or detectable amount of alcohol in the person's body in violation of Section
178 41-6a-530 ;
179 (xvi) engaging in a motor vehicle speed contest or exhibition of speed on a highway in
180 violation of Section 41-6a-606 ; or

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- 7 - 181 (xvii) operating or being in actual physical control of a motor vehicle in this state
182 without an ignition interlock system in violation of Section 41-6a-518.2 .
183 (b) The division shall immediately revoke the license of a person upon receiving a
184 record of an adjudication under Title 78A, Chapter 6, Juvenile Court Act of 1996, for:
185 (i) a felony violation of Section 76-10-508 or 76-10-508.1 involving discharging or
186 allowing the discharge of a firearm from a vehicle; or
187 (ii) using, allowing the use of, or causing to be used any explosive, chemical, or
188 incendiary device from a vehicle in violation of Subsection 76-10-306 (4)(b).
189 (c) Except when action is taken under Section 53-3-219 for the same offense, the
190 division shall immediately suspend for six months the license of a person upon receiving a
191 record of conviction for:
192 (i) any violation of:
193 (A) Title 58, Chapter 37, Utah Controlled Substances Act;
194 (B) Title 58, Chapter 37a, Utah Drug Paraphernalia Act;
195 (C) Title 58, Chapter 37b, Imitation Controlled Substances Act;
196 (D) Title 58, Chapter 37c, Utah Controlled Substance Precursor Act; or
197 (E) Title 58, Chapter 37d, Clandestine Drug Lab Act; or
198 (ii) any criminal offense that prohibits:
199 (A) possession, distribution, manufacture, cultivation, sale, or transfer of any substance
200 that is prohibited under the acts described in Subsection (1)(c)(i); or
201 (B) the attempt or conspiracy to possess, distribute, manufacture, cultivate, sell, or
202 transfer any substance that is prohibited under the acts described in Subsection (1)(c)(i).
203 (2) The division shall extend the period of the first denial, suspension, revocation, or
204 disqualification for an additional like period, to a maximum of one year for each subsequent
205 occurrence, upon receiving:
206 (a) a record of the conviction of any person on a charge of driving a motor vehicle
207 while the person's license is denied, suspended, revoked, or disqualified;
208 (b) a record of a conviction of the person for any violation of the motor vehicle law in
209 which the person was involved as a driver;
210 (c) a report of an arrest of the person for any violation of the motor vehicle law in
211 which the person was involved as a driver; or

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- 8 - 212 (d) a report of an accident in which the person was involved as a driver.
213 (3) When the division receives a report under Subsection (2)(c) or (d) that a person is
214 driving while the person's license is denied, suspended, disqualified, or revoked, the person is
215 entitled to a hearing regarding the extension of the time of denial, suspension, disqualification,
216 or revocation originally imposed under Section 53-3-221 .
217 (4) (a) The division may extend to a person the limited privilege of driving a motor
218 vehicle to and from the person's place of employment or within other specified limits on
219 recommendation of the trial judge in any case where a person is convicted of any of the
220 offenses referred to in Subsections (1) and (2) except:
221 (i) automobile homicide under Subsection (1)(a)(i);
222 (ii) those offenses referred to in Subsections (1)(a)(ii), (a)(iii), (a)(xi), (a)(xii), (a)(xiii),
223 (1)(b), and (1)(c); and
224 (iii) those offenses referred to in Subsection (2) when the original denial, suspension,
225 revocation, or disqualification was imposed because of a violation of Section 41-6a-502 ,
226 41-6a-517 , a local ordinance which complies with the requirements of Subsection
227 41-6a-510 (1), Section 41-6a-520 , or Section 76-5-207 , or a criminal prohibition that the person
228 was charged with violating as a result of a plea bargain after having been originally charged
229 with violating one or more of these sections or ordinances.
230 (b) This discretionary privilege is limited to when undue hardship would result from a
231 failure to grant the privilege and may be granted only once to any person during any single
232 period of denial, suspension, revocation, or disqualification, or extension of that denial,
233 suspension, revocation, or disqualification.
234 (c) A limited CDL may not be granted to a person disqualified under Part 4, Uniform
235 Commercial Driver License Act, or whose license has been revoked, suspended, cancelled, or
236 denied under this chapter.
237 Section 4. Section 76-5-207.5 is enacted to read:
238 76-5-207.5. Automobile homicide involving text messaging or electronic mail
239 communication while driving.
240 (1) As used in this section:
241 (a) "Handheld wireless communication device" has the same meaning as defined in
242 Section 41-6a-1716 .

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- 9 - 243 (b) "Motor vehicle" means any self-propelled vehicle and includes any automobile,
244 truck, van, motorcycle, train, engine, watercraft, or aircraft.
245 (c) "Text messaging" has the same meaning as defined in Section 76-4-401 .
246 (2) (a) As used in this Subsection (2), "negligent" means simple negligence, the failure
247 to exercise that degree of care that reasonable and prudent persons exercise under like or
248 similar circumstances.
249 (b) Criminal homicide is automobile homicide, a third degree felony, if the person
250 operates a moving motor vehicle in a negligent manner while using a handheld wireless
251 communication device for text messaging or electronic mail communication at the time of
252 operation causing the death of another.
253 (3) (a) As used in this Subsection (3), "criminally negligent" means criminal
254 negligence as defined by Subsection 76-2-103 (4).
255 (b) Criminal homicide is automobile homicide, a second degree felony, if the person
256 operates a moving motor vehicle in a criminally negligent manner while using a handheld
257 wireless communication device for text messaging or electronic mail communication at the
258 time of operation causing the death of another.