The city’s “hands-free” ordinance was adopted Feb. 23 in an effort to curtail distracted driving, according to meeting documents. It authorized police to ticket drivers observed using any mobile electronic device, including phones, tablets and laptops, according to those documents. Use of voice-activated devices was permitted.
Police officials recommended the city council repeal the ordinance because the new statewide ban interferes with the Sugar Land Police Department’s ability to enforce its ordinance, said Scott Schultz, Sugar Land’s assistant chief of police.
House Bill 62 pre-empts “all local ordinances, rules, or other regulations adopted by a political subdivision relating to the use of a portable wireless communication device by the operator of a motor vehicle to read, write, or send an electronic message,” according to the enrolled version of the bill.
“So what that’s saying is that no city can create an ordinance that interferes with HB 62 in any way, shape or form,” Schultz said. “With the language written in HB 62, it’s okay for you to have your phone in your hand. You can still use it to dial a phone number, talk on the phone, you can use it for navigation, so the biggest part of the ‘hands-free’ portion of our ordinance is null and void at that point because HB 62 says we can’t enforce that.”
Because a police officer has no way to know whether a driver is using his or her mobile device to text or for another purpose, there is no probable cause for a traffic stop, Schultz said.
“If someone’s driving down the road, and they’re looking at their phone and they’re messing with it, I don’t know if they’re sending a text message, dialing a phone number, using it for navigation,” Schultz said.
Under the new state law, an officer needs to prove a driver was texting in order to issue a ticket, Schultz said. If the driver refuses to show his or her phone to the officer, a search warrant would need to be obtained to prove the phone was used for messaging—a labor-intensive process to prove a class C misdemeanor, he said.
Over 100 cities in Texas have local ordinances restricting drivers' use of mobile devices to some degree. Austin police Sgt. Michael Barger said his city's hands-free ordinance would stay in place unless a legal interpretation found it in violation of the state law.
“There’s no point in modifying our current ordinance because it’s valid,” Barger said. “Maybe if a judge decides that it’s not then we may go back and look for an amendment to it, but as it stands right now, there’s not a reason for us to do that.”
The Sugar Land City Council’s vote to repeal was the first of two required readings. The council’s second reading and vote on whether to repeal would likely take place later this month, Schultz said.