New Jersey Appeals Court Neuters Cell Phone Driving Statute — State v. Malone

[Post by Venkat Balasubramani]

State v. Malone, 2011 N.J. Super. Unpub. LEXIS 1738 (N.J. Ct. App. July 1, 2011)

New Jersey’s cell phone driving statute suffered a serious blow at the hands of the New Jersey appeals court, which held that the statute does not prohibit a driver from “activating” or “dialing” a cell phone equipped with a hands-free device.

Background: Elliot Malone was charged with using a cell phone while driving under New Jersey’s cell phone statute (N.J.S.A. 39:4-97.3). An officer observed Malone driving in the opposing direction and saw that Malone was holding a cell phone in his hand and “pushing buttons.” At the municipal court hearing, the officer testified that he had no idea whether Malone was using a hands-free device and could not testify conclusively as to what exactly Malone was doing with his phone. The municipal court rejected Malone’s arguments, found him guilty, and imposed a fine of $106, along with $33 in court costs.

On review, the trial court concluded that Malone had been using a hands-free device, but that Malone could not satisfy the exception for activating or deactivating the phone. The trial court concluded that it was sufficient for the state to show that Malone “used” the cell phone while driving, and that Malone was “guilty of holding his cell phone while driving.” [Malone tried to introduce his cell phone records to support his contention of innocence, but the municipal court rejected this evidence as not having been properly authenticated.] Proceeding pro se, Malone appealed and won.

The Statute: The statute provides that:

the use of a wireless telephone or electronic communication device by an operator of a moving motor vehicle on a public road or highway shall be unlawful except when the telephone is a hands-free wireless telephone or the communication device is used hands-free

The statute also defines a “hands-free wireless telephone,” but this definition expressly excludes “the use [while driving] of either hand to activate, deactivate or initiate a function of the telephone.”

The Appeals Court’s Decision: The appeals court finds that the statute prohibits a motorist from talking or listening to another person or texting with another person, unless the motorist uses a hands-free device to accomplish those functions. Unfortunately for the state, the court also concludes that:

The driver may . . . hold the telephone in one hand for the period of time necessary to ‘activate, deactivate or initiate’ a function of the telephone.

The state argued that a cell phone equipped with a hands-free device can only be used by a motorist for listening. The state also argued that pushing buttons is the same as dialing, and that “activating” or “deactivating” a phone does not require the motorist to push multiple buttons.

The use of a hands-free phone is not limited to “listening” under the statute: The court rejects the state’s interpretation of the statute that it only allows for hands-free equipped mobile devices to be used for listening. The statute defines “use” to include “talking or listening to another person . . . or sending an electronic message [or text message].” The statute’s exception for the use of hands-free equipped cell phones thus clearly allows a motorist to “use” the phone that is equipped with a hands-free device for talking as well as listening, and for texting as well.

Motorists are permitted to activate their hands-free device equipped cell phones while driving: The state tried to argue that motorists are not permitted to hold hands-free cell phones at any time while driving unless one of the emergency exceptions was satisfied. The state was fighting an uphill battle on this issue as well given the language of the statute. Motorists are allowed to “use” hands-free equipped cell phones, and the definition of “hands-free wireless telephone” expressly recognizes that the statute does not prohibit “the use of either hand to activate, deactivate, or initiate a function of the telephone.”

The state also argued that even if the statute allows motorists to activate or deactivate a hands-free equipped mobile phone, this does not permit motorists to dial the phone. The court rejects this argument as well, citing to legislative history to the effect that hands-free devices should be permitted because they “reduce [but do not eliminate] the distractions associated with dialing, holding, reaching for or picking up a dropped handset.” The court also notes that the legislature did not define the terms “activate, deactivate or initiate” and did not expressly prohibit “dialing.” Because motorists were permitted to “activate” or “initiate” a phone while driving, this implicitly includes the ability to “dial” while in the process of initiating or activating the phone.

Motorists may press buttons while activating a hands-free equipped wireless device: The court rejects the argument that activation of a wireless phone “should not take the pressing of buttons,” noting that there are a variety of ways in which users can dial when using a wireless telephone. Even with voice dialing, which is the most “advanced” of the options, the operators is typically required to press one or more buttons. The legislature did not specify which particular method of voice activation was allowed under the statute. Thus, the court concludes:

There are many ways by which a motorist would ‘activate’ the wireless telephone, and the statute does not limit the methods used by a motorist.


The court’s decision neuters the statute to make it totally useless as an enforcement tool. To summarize, under the court’s interpretation: (1) motorists can listen and talk while using a hands-free device; (2) motorists can hold the phone in one hand to activate or deactivate the phone; (3) motorists may dial the phone while activating or initiating it; and (4) dialing may require the pressing of multiple buttons. As long as you have a hands-free-equipped phone, the court’s interpretation gives you wide berth to argue that, although you were holding it while driving, you were only holding it in order to activate or deactivate it and dial it in the process of activating or initiating it.

Like the majority of people out there, I’m thoroughly opposed to texting or talking while driving. The statute is well intentioned, but the drafters included a hands-free exception (likely in order to satisfy some special interests), and in the process, unwittingly created a loophole big enough to drive a truck through. Legislative drafters don’t seem to have a good sense of precision, particularly when it comes to applying the law to technology. Even the simple definition of “dial” is something that is subject to a variety of different possibilities, depending on the type of equipment and application used, and the drafters did not specify which method of dialing was permitted. Given the pace with which technology moves, I’m not sure the legislature could have effectively locked down this definition even if it tried.

I’m guessing the state will appeal this decision, so we’ll see whether the New Jersey Supreme Court has a different take on the statute.