Identifying Loopholes in the Georgia Hands-Free Law

An Overview of the Georgia Hands-Free Law

Georgia’s hands-free law – which took effect on July 1, 2018 – prohibits drivers from engaging in several varieties of distracted driving, including using handheld devices to talk, text, read texts, and other forms of communication. It also restricts the use of video-recording and video-chatting applications. The law was enacted in response to the increased danger caused by distracted driving and is intended to prevent car accidents caused by driver inattention.
Georgia’s hands-free law prohibits a driver from using a mobile device – a device in which individuals can use wireless communication that is readily portable and easily moved – in a variety of context while operating a motor vehicle. For example, the law forbids drivers from engaging in any on-device communication such as phone calls, texting, watching videos or movies, and web browsing. It also prohibits drivers from reading or manually typing text messages, reading or manually typing email messages, and using social media on a mobile device while driving. Similarly, drivers are generally prohibited from using recording or broadcasting functions on their mobile devices and participating in video chats while driving .
Georgia’s hands-free law does contain some exceptions. For example, drivers in Georgia are still permitted to use voice-based services that enable hands-free operation of the device. Thus, drivers may use mobile devices to send text messages, obtain directions, or perform other activities simply by stating the appropriate commands directly into their device. However, drivers’ use of mobile devices must not contribute to moving violations, traffic accidents, or any other forms of driver inattention that could interfere with the safety of driving.
Despite its broad applicability, Georgia’s hands-free law does not completely preclude drivers from using their mobile devices while driving. For example, the law allows drivers to activate or deactivate their mobile devices while driving if the mobile devices can be done without requiring physical contact with the driver. In other words, the law’s prohibitions generally do not apply if drivers are able to turn their mobile device on and off simply by verbally indicating their preferences without physically pressing a button or touching a screen. Thus, in some situations, drivers in Georgia can technically use handheld mobile devices without violating Georgia’s hands-free law.

The Text of the Georgia Hands-Free Law and its Interpretations

Though it is important to be cautious on the roads at any time of day or night, the Georgia State Legislature explicitly outlines when and why you must keep your hands on the wheel. As stated in Georgia Code § 40-6-241: "While driving a motor vehicle on any highway, street, or roadway, except as provided for an authorized emergency vehicle as defined in Code Section 40-1-1, no person shall operate such motor vehicle or hold, use, or physically support a communication device with any part of his or her body."
Remember, because the law requires you to keep both hands on the steering wheel, you cannot have the phone pulled into your ear or resting between your shoulder and your face while driving-an operation that is inherently unsafe. The law also makes it clear that the phone cannot be held in one hand while the other is still on the wheel-as that would actually entail taking at least one hand off the wheel, technically speaking. Even if your phone is on speaker phone and resting on your leg in what can be interpreted as a clearly hands-free position, that won’t matter if the phone is used to text or email. In other words, if you use a text-to-speech app to dictate a message while holding the steering wheel with one hand, then lift the phone to your other hand to hit send, you have violated the law.
Any number of loopholes are formed in this language, however, when it is read and interpreted outside a safety-focused context. Since many think that a "communication device" can mean any sort of portable digital apparatus, in even the most technical sense, they think "oh, great! This giant laptop is not a problem if I rest it on my knee!" The law defines a communication device to be "a device that is capable of transmitting, receiving, or displaying written communication or images"-so all the laptop user has to do is prove that the laptop is "capable" of displaying written communication, and "viola"! Ultimately, this kind of loophole leaves the true motivation behind this law in the dust.

Recognizing Common Loopholes

For some, those provisions may not constitute driver distraction. For example, a person using his or her phone can easily argue that they were using it for an "emergency purposes" as defined by this law. While Georgia case law on this specific issue is lacking, other jurisdictions have already addressed this matter. Under Georgia law, emergency purposes include an individual calling a friend or family member or sending a text to a friend or family member in response to an emergency situation.
Georgia’s emergency purpose provision renders the legality of many forms of distraction related to the use of mobile phones extremely likely to be accepted by law enforcement as clear beyond the scope of distraction. In times of emergency, activity that could easily be defined as distraction under the law is now protected, opening a potential "loophole" for frequent and severe criminal offenders to use their phones for anything. Under Georgia’s law, if you are not making a phone call but are still interacting with your phone, you may very well be safely protected from receiving any penalty for using your device in a potentially dangerous manner.
The law’s definition of "emergency purposes" refers to emergency situations without specification of what constitutes an emergency. The law leaves the definition of an emergency up to the interpretation of the officer reviewing the incident. Thus, actions such as changing the song on a playlist, sending an important text message regardless of the time, or looking up the local pizza place (or what have you) to order dinner pose no real limits on what constitutes an emergency.
Next, the exceptions to the hands-free law include use of one-button, hands-free technology. This means that on top of the established loophole of emergency usage, any built-in features that come with the phone or operation of the vehicle itself defined as one-button or hands-free are also exempt. Except for the emergency "loophole," every other loophole is for the benefit of the driver, which makes little sense in the face of distractions that exist while using a phone.

Effects of Loophole Use

While the law is statutorily clear, its enforcement realities can be murky. An effective hands-free policy depends not only on proper enforcement, but also on the public’s voluntary compliance and recognition of its dereliction. Claims of loopholes and unquestioningly exploiting them are unlikely to endear you to the State Patrol; however, impactful enforcement is largely based on a law enforcement officer’s interpretation of the law at the time of the citation. As such, it is difficult to determine whether an officer would issue a citation for each instance of non-compliance. Repeatedly flaunting the law does nothing to aid any subsequent claim of misunderstanding of the law. If nothing else, the negative effects of exploiting loopholes do not stop with the individual. Violation of the law creates a culture of indifference that can increase the potential for accidents, injuries, and fatalities… for everyone. Loopholes that create ambiguity foster an interpretation that the law is optional. Perhaps, as the law stands, its requirements are ambiguous and debatable, but its purpose is clear: safety, and the reduction of dangers of distracted driving. Failure to abide by even the unambiguous parts of the law negatively impacts everyone.

Legislative Attempts to Seal the Loopholes

Following the passage of the July 1, 2018 amendment, Georgia’s hands-free law omits mention of crystal clear issues. The omission keeps the law from clearly defining what the law does not prohibit. While courts will probably adjust and interpret what is and is not prohibited, some legislators have recognized the gray areas of the law, and have proposed closer examination in an effort to close them.
Most recently, on January 8, 2019, State Representative Chuck Efstration (R-Dacula) introduced a strong bill aimed at loophole closure. The first bill in the 2019 Legislative Session, House Bill 5 would prohibit all use of handheld mobile devices, even while idling and taking to-go orders, while stopped in traffic signals. The bill also prohibits the use of ear buds unless they are mono paired for hands-free operation. With the effort to curb texting and other distracted driving behaviors, many North Carolina residents may be surprised to discover that they are considered among the most distracted on the East Coast. According to a 2012 report on distracted driving by Allstate Insurance, Charlotte, North Carolina had the sixth-worst distracted driving numbers in the country . That reputation is part of the reason why North Carolina has among the toughest penalties for using a cell phone while driving. North Carolina’s Driving While Impaired statute makes it illegal to send or read any text message or email, access the Internet, or engage in any other similarly distracting activity while behind the wheel.
Representative Efstration’s bill also clarifies language to prevent circumvention of the requirements by use of a non-handheld mobile telecommunications device or electronic communication. Law enforcement officers have continually expressed concern over the interpretation of the July 1, 2018 amendment, when drivers physically hold a coffee, soda, or food which the driver offers as being a component of the handheld device. The January 2019 bill, however, is not without criticism. Some medical professionals and technicians argue that the new bill is a backdoor way to ban hands-free cellular service altogether.
Any changes to the law will be decided by the Georgia House, then the Senate if passed by the House. It is unclear if H.B. 5 will make it out of Committee, and if it does, whether it will be signed into law. For now, Georgia’s hands-free law, without ancillary clarifying language, remains at least six months old.

Nuances of the Expert Viewpoint

There’s no shortage of opinions on whether or not the hands-free law is having the desired effect. Legal experts point to the loopholes, while traffic safety advocates take the law as it is for what it’s worth and vow to keep fighting.
"I would say [the law] is almost meaningless. And that’s very sad," local personal injury attorney Charles L. Rubell said. "It’s like saying, ‘You may not have a 38-caliber in a bar,’ and then allowing them to walk around with a .44."
Rubell notes that so many exemptions are listed in the law that they’ve become virtually meaningless. You can eat, engage with an adult passenger, or even adjust the station and temperature settings in your car without much worry. All under "hands-free" conditions. So long as you’re doing something with one hand.
But despite this apparent ineffectiveness, traffic safety advocates have vowed to keep fighting the good fight. Organizations like the Georgia Traffic Safety Center and organizations that support the "It Can Wait" campaign have not backed down since the new hands-free law took effect.
"Any draw distracts you. Anything you do at all distracts you," said spokeswoman Kim Black, whose organization strongly supports the law and will continue in their efforts to bring more attention to the dangers of distracted driving.
Black points out that having a passenger in the car can be just as distracting, if not more so, than using a mobile device. But Black said hands-free laws, such as the one in Georgia, are a great starting point in eliminating a huge problem that has steadily increased over the last 10 years.
"I know people are going to break the law and I know people are going to drive distracted no matter what. That’s human nature," she said. But, she added, "Like all the other laws, it’s going to take time. People breaking laws, you can’t make laws against human nature."
Black says that most of the people who have contacted her organization for information about distracted driving laws and penalties have reacted positively to the new law going into effect. The greatest frustration comes from the loopholes. She also cites careless drivers who text, but use the excuse of the "new hands-free law" to escape any kind of punishment for their driving habits.
Black is quick to defend people who don’t think the law is fair, because non-lawyers can’t parse through the legalese and nuances like they can.
While there have been more than 2,000 hands-free law citations issued in the first three months since it took effect, only 11 of those were issued in the city of Gainesville.
The fine for violating the law is between $50 and $100. Repeat offenders can face fines exponentially higher.
Why do you think there have been so few citations in Gainesville? Is it because people pay closer attention to the law when they think they’re being watched?
Police spokesman Kevin Holbrook – who admits he is guilty of texting and driving himself – says the City may not have its priorities straight. With murder and aggravated assault cases on the rise, the focus of police resources has shifted from traffic enforcement to violent crimes.
"Traffic is not a priority anymore," he said. "We’ve had some significant increases in violent crime as far as assaults and shootings. It takes away resources."
Still, Holbrook admits the law is a good thing – good law – that is just not as heavily enforced in Gainesville as it should be.
"But there are always going to be loopholes in every law. If you don’t allow some exceptions, no one would obey any law," he said.
Rubell, who is board certified in practice areas of both personal injury law and civil trial advocacy, cited the extra conditions in the law as strange, uncalled-for, and rarely seen in other states.
"There’s nothing else in our society where they give these types of exceptions," he said. "This type of drawing of a line is unheard of, really. So instead of a bright line, it’s sort of like a wavy, undefined line."
But he adds that even though the law might be ineffective, the conversation as a whole may still be a positive.
"People are talking about [distracted driving] all the time now as opposed to when it was a non-issue prior to the hands-free law. Right now, it’s in the air."
So where does this leave us – a law that presents loopholes and is hardly enforced – when 27 states and D.C. maintain the hands-free law as their own? Several local traffic safety advocates claim it’s a step in the right direction, but there’s a need for more enforcement, both of the law and of those violating it.
"It’s a pain in the butt, but we have to keep reminding people of that. I do think there is an improvement in the awareness of the issue," Black said.
Rubell remains frustrated at the idea that distracted driving will become a full-blown epidemic before officials realize the law is not doing its job.
"All we can do is hope we can push the safety aspect of this law over the loopholes," he said. "I’m just afraid that it’s going to take someone getting catastrophically injured or killed. This law would have been an opportunity to reduce the number of catastrophic injuries and deaths that we’ve seen in the past."

Using Citizen Advocacy to Change the Law

Rather than sit idly by, concerned citizens and advocacy groups can take an active role in demanding and advocating for more stringent laws or initiatives that will follow the lead of Georgia’s hands-free law. Too often, safety laws fail their targets because revisions are not made to address additional nuisances that can impair safety. For instance, although the hands-free law prohibits drivers from utilizing handheld devices while behind the wheel, people can still pose a threat to the roadway by changing music on their phone with their hands, perusing their social media accounts, and searching for and accessing information online . Although The National Highway Traffic Safety Administration (NHTSA) doesn’t currently address these non-cell phone distractions in its recommendations, it has encouraged its member states to address ways to manage them in order to minimize driver distraction.
Pushing for new provisions to be added to the existing hands-free law can collectively bring about more awareness and public support of the law, which can lead to more effective enforcement and compliance. Aside from advocating for any new proposed changes to the law, citizens can also engage with their local assembly representatives and state legislators to collectively voice their concerns about any lapses in the current incarnation of the hands-free law.