December 2012

By: James B. Sherman, Esq.

On December 2, 2011 the Department of Transportation (“DOT”) published its new regulations prohibiting the use of hand-held mobile (cell) phones by drivers of interstate commercial motor vehicles, which include busses and trucks on interstate routes (“CMV drivers”). The new regulations take affect 30 days after publication, i.e. on January 1, 2012.

More specifically, the final rule prohibits CMV drivers from holding, dialing or reaching for a hand-held cell phone. CMV drivers are allowed, however, to use a hands-free device so long as that device does not require the driver to take his/her eyes off the road. Further, because some hands-free devices require the user to touch the phone, the rule allows CMV drivers to initiate, answer or end a call by touching a single button on either the mobile device or the headset. It is important to note that although this ban extends to push-to-talk functions on hand-held cell phones; it does not ban the use of CB radios because, oddly enough, the DOT does not consider CB radios to be cellular technology.

Further, the rule bans a CMV driver from reaching for any cellular device in an “unacceptable and unsafe manner” and requires the driver to be in “close proximity” to any compliant device that he/she intends to use.

Penalties for violations of this little known provision can be stiff:

• Drivers convicted of hand-held cell phone violations twice within three years will be disqualified for 60 days;
• Drivers convicted three times within three years will be disqualified for 120 days;
• Individual states will suspend a driver’s commercial driver’s license after two or more serious traffic violations, which include violations regarding hand-held cell phones.
• Drivers face individual penalties up to $2,750 per violation;
• Motor carriers allowing drivers covered under this rule to use a hand-held cell phone face penalties up to $11,000 per violation; and
• Employer Liability. The rule’s language makes an employer liable for a driver’s actions while on the job or carrying out company business regardless of whether the employer allowed the driver to use a hand-held cell phone.

Approximately four million commercial drivers will be affected by this final rule. Therefore, employers of DOT covered drivers should review their policies to ensure they are consistent with the new regulations. For questions please contact Jim Sherman or any of our experienced attorneys in our five offices in MN; WI; IL; or IA.