© 2017 by George C. Palaidis, Esq. 

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Will Florida finally ban distracted driving in 2019?


After a 2018 full of tragedy for cyclists and pedestrians, 2019 begins with hope that Florida’s laws will finally catch up with other states regarding distracted driving. This year begins with three bills filed in the Florida Legislature seeking to tackle the toothless law already in place that bans texting while driving.

The Current Law: Section 316.305

Section 316.305 of the Florida Statutes was passed in 2013 as the “Florida Ban on Texting while Driving Law.” The law prohibits a driver from using a wireless device for “nonvoice interpersonal communication,” such as texting, e-mailing, and instant messaging. This includes manually typing or reading those communications. Exceptions to the prohibition include if the vehicle is stopped (at a light, for example), using it for navigation, or speaking on the phone.

The primary issue with section 316.305 is that a violation is only a secondary offense. That means a law enforcement officer cannot stop a driver for violating the law. The officer would need to have stopped the driver for some other violation before being able to also issue a citation. Drivers essentially have no incentive to follow this law if they know they won’t be stopped for violating it.

Attempts have been made to pass stricter laws allowing police to pull over and cite offending drivers, but time and again those attempts have failed in the Legislature. This year, three new bills, one in the Senate and two in the House, have been filed and there is hope that the recent tragedies will provide enough of a movement to get meaningful laws passed.

Senate Bill 76 & House Bill 107

I decided to group these two together because they are essentially the same bill. Senator Wilton Simpson, representing much of Citrus, Hernando and Pasco Counties, filed SB 76 on November 20, 2018. Representative Jackie Toledo of Tampa filed HB 107 on December 17, 2018.

Simpson and Toledo’s bills are near mirror images but for a clause where one bill has the insertion of “or listening or talking” and the other adds “or using.” First, both bills seek to amend 316.305 by allowing police officers to stop and issue citations to drivers for a violation of the law, as opposed to the law being a secondary offense.

Second, and more importantly, the bills seem to completely ban the use of a cell phone while driving, regardless of whether a person is using the cell phone in a hands-free manner. Section 316.305(3)(a) of the current law spells out the prohibition on texting while driving. The two bills didn’t rewrite that paragraph and only inserted a few words which included talking on the phone to the prohibition.

As written, an argument could be made that the bills ban the use of a cellphone completely while driving, or on the other hand that it bans using a cell phone to talk while physically holding the phone and driving. While news reports discussing the bills say drivers would be allowed to communicate hands-free on wireless devices (using speaker phone or Bluetooth, for example), the bills’ language isn’t so clear. Also, the title of both bills indicates a total ban, providing that the bills prohibit “a person from operating a motor vehicle while using a wireless communications device of the purpose of nonvoice or voice interpersonal communication.”

Lastly, the bills do not address an issue that caused a 2018 proposal to die in the Senate. That issue dealt with concerns about issues such as minority drivers and racial profiling. The 2019 bills are silent on that issue, and it’ll likely being an issue again.

House Bill 45

Representative Emily Slosberg (Boca Raton, Boyton Beach, and Delray Beach) filed HB 45 on November 26, 2018.

Slosberg’s bill offers much more of a rewrite of the present law. First off, as with the other two bills, it no longer designates the law as a secondary offense and would now allow officers to stop a driver in violation.

The law then tackles the prohibition on using a cell phone by starting from scratch. The title itself states that the bill seeks to prohibit “the operation of a motor vehicle while holding or touching a wireless communications device.” The bill includes detailed definitions for both “hands-free device” and “wireless communications device.” Following those definitions, the bill clearly states that a “person may not operate a motor vehicle while manually holding or otherwise touching a wireless communications device.” The exception for when a vehicle is stopped remains.

The bill does allow for the use of a device for talking through the use of a hands-free device (for example, again, speaker or Bluetooth), as well as for navigation purposes.

The bill also addresses concerns that were raised in 2018 regarding racial profiling by requiring an officer issuing a citation to record the race of the driver so that the information can be compiled and presented in annual reports.

Status of the Bills

The three bills have been referred to committees for hearings. HB 45 is before the Transportation and Infrastructure Subcommittee; Transportation and Tourism Appropriations Subcommittee; and State Affairs Committee. HB 107 is before the Transportation and Infrastructure Subcommittee; Appropriations Committee; and State Affairs Committee. SB 76 is before the Infrastructure and Security; Innovation, Industry, and Technology; Judiciary; and Rules Committee.

Going Forward

There are concerns about the viability of HB107/SB76. The bills appear to completely ban the use of a cell phone, even if on speaker phone or Bluetooth in a hands-free capacity. No other state has that level of prohibition. Of course, a total ban would make the streets even safer, but realistically the support may not exist in the Legislature. That, coupled with the unresolved issue on potential racial profiling, gives me the feeling that this bill won’t survive as well.

HB 107, on the other hand, is a much better written bill that appears to address many of the issues of the past that have prevented the passage of a stricter cell phone ban. Unfortunately, there isn’t a companion bill filed in the Florida Senate, and that could hurt its prospects passing.

As the 2019 Legislative session draws closer, I’ll keep readers updated on the status of the bills and who to contact. Hopefully 2019 will be the year when we’ll have a meaningful bill passed that’ll protect the safety of other pedestrians, cyclists, and drivers from distracted drivers.


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