Using Hand-held Mobiles While Driving Big Trucks a No-No

3/30/2012

Running a business in this regulatory environment is tough, very tough, so you definitely don't want to miss  the new monthly column debuting in TURF magazine's May issue. Attorney Patrick McGuiness, in Turf's new "Playing by the Rules" column will keep you abreast of regulatory issues that impact your business.

(By the way, they impact his business, too. In addition to being a founding partner of Zlimen & McGuiness, PLLC, he's part owner of One Call Landscaping in Minneapolis.)

Here's a sample of what McGuiness will be sharing with you each month in TURF. The complete article appears in Turf's May issue.

If you haven't already heard about the new mobile phone rule from the U.S. DOT, now is your opportunity to read all about it. As of Jan. 1, 2012, commercial truck drivers (and bus drivers) are prohibited from using hand held mobile telephones. Here is a summary of the rule from the US DOT Motor Carrier Safety Administration:

"The final rule prohibits commercial drivers from using a hand-held mobile telephone while operating a commercial truck or bus.


Drivers who violate the restriction will face federal civil penalties of up to $2,750 for each offense and disqualification from operating a commercial motor vehicle for multiple offenses. Additionally, states will suspend a driver's commercial driver's license (CDL) after two or more serious traffic violations. Commercial truck and bus companies that allow their drivers to use hand-held cell phones while driving will face a maximum penalty of $11,000."

This general description of the new rule of course brings up many great questions.
Question: What size trucks are covered by the rule? Answer: The driver of any commercial truck over 10,001 GVW is required to comply with the new rule.

Question: What if I use a "blue tooth" or have the phone on speakerphone, then can I use the phone?

Answer: Maybe. Drivers are allowed to use phones with hands-free devices only if they are able to complete the use of the phone with the push of one button. This means that dialing a complete number is not allowed, nor is looking through a contact list before dialing. Essentially all that is allowed is to use voice command dialing and pressing one button to complete the calling process.

Question: What about Nextel and other "walkie-talkie" phones, are they exempt from the rule or if not, do they qualify under the "one button" rule?

Answer: Nextel and other similar phones are not exempt and cannot be used by drivers. The reasoning for this is that this type of communication requires the phone to be hand -held and not hands-free like the rule requires.

Question: Nextel and similar phones are just like CB radios, so is CB radio and walkie-talkie use prohibited by this rule?

Answer: No, because CB radios and walkie-talkies are radio devices and not mobile phones, the rule does not apply to them and their use is still allowed.

As you can see, there is a penalty not only for drivers who violate the rule, but also for the companies that employ them. It's a good idea to update your employee handbook to reflect the changes made by this rule. This will also create a great opportunity to review the handbook with your employees and drivers so that it's fresh in their minds. If you don't have an employee handbook I would encourage you to look into drafting one.

Hopefully, this answers many of your questions about this new rule that will undoubtedly affect thousands of people in our industry.  If you have additional questions, I encourage you to go www.fmcas.dot.gov to review the language of the rule. You can also brush up on the other rules that may apply to your business.

As I tell people so often when I am presenting seminars and giving speeches: I am only the messenger. I do not write the laws and rules, I only tell you what they are. So, if you do not like the way that the law is affecting your business, do something about it. Become involved in commenting on proposed regulations and contact your congressperson about pending legislation. Finally, get the word out to others in our industry because there is power in numbers.

This article provides general information on legal matters and should not be relied upon as legal advice. A qualified attorney must analyze all relevant facts and apply the applicable law to any matter before legal advice can be given. If you would like more information regarding transportation law or other legal matters, please contact Patrick McGuiness at pmcguiness@zmattorneys.com.

Also, sign up for the Zlimen & McGuiness Federal Updates Newsletter (it's free) by clicking here.