‘Hands-free is hands-free:’ Revised Minnesota law cracks down on drivers handling cellphones

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Minnesota drivers who hold their cellphones a foot or so from their faces, chatting while using the speaker function on the phone. Is that legal?

Since 2019, the state has had a hands-free driving law that requires cellphone conversations to be conducted only with hands-free devices via speakers or a single earbud. The phone isn’t against the driver’s ear and they’re using hands-free mode, so are they good?

They’re not. Holding a phone at all has been illegal for nearly four years, backers of the hands-free law say. But because some drivers and a few prosecutors and judges think the law isn’t clear about whether law enforcement officers need to prove that a driver was both holding a phone and using it, the 266-page transportation omnibus bill (starting on page 124 here) signed by Gov. Tim Walz last week made it clear: “When a motor vehicle is in motion or a part of traffic, the person operating the vehicle upon a street​ or highway is prohibited from:​ holding a wireless communications device with one or both hands …”

To receive a citation, a law-enforcement officer only has to see the phone in either hand — or both hands even — and doesn’t have to prove that the phone-holder was also engaged in any of the illegal activities covered by the existing law.

“Hands-free is hands-free,” said Col. Matt Langer, chief of the Minnesota State Patrol. There might have been confusion but he thinks the previous law already made holding a phone illegal on its own, despite what some drivers and court administrators concluded.

“This wasn’t something state troopers were encountering as problematic, but at the same time we think it strengthens the law and reinforces common sense that when you’re driving you shouldn’t be handling or fumbling around with a phone,” Langer said of the change passed this month. “This puts abundant clarity around the fact that you can’t have it in your hand.”

Langer cited “here and there stories” about judges who have issues with the old statute but said, “I’m not aware of any wide-scale challenges with the law.” This one-line insertion, he said, makes it “exceptionally clear.”

For 2021, the most recent year for the Department of Public Safety’s crash statistics, distracted driving was the fourth leading cause of deaths in Minnesota after speed, unbelted motorists and impaired driving. It counted 27 deaths blamed on distracted driving versus 32 in 2020.

State troopers had issued 8,825 citations and warnings for distracted driving, which includes improper cellphone use, through May 2, according to patrol statistics. That is up 9.2% from the same period last year. That category is the second-highest reason for citations in Minnesota, but well behind speeding, for which there had been 60,855 citations and warnings through May 2.

Minnesota had already banned texting while driving and use of the internet or accessing video while driving when, in 2019, the Legislature banned all cellphone use by drivers without the use of hands-free equipment.

The law allows placing or receiving calls only with hands-free equipment installed in a vehicle. A single touch of a screen is allowed. The other exceptions are to use mapping apps that don’t require typing and music systems that don’t require scrolling or typing. In both cases, current law adds “provided that the person does not​ hold the device with one or both hands.”

Calling for emergency help or to “prevent a crime about to be committed;​ in the reasonable belief that a person’s life or safety is in immediate danger” is allowed while holding a phone.  

Paul Aasen, the president of the Minnesota Safety Council, pushed for the 2019 law and asked for the clarification this year. He said some district courts and court administrators have said prosecutors have to prove that the driver was engaging in other illegal acts under the law in addition to holding the phone, such as taking part in a call.

“They interpreted it as, ‘if we catch you holding your phone, you also have to prove you are doing one of those other things on the list as well,” he said. To prove there was illegal texting or illegal phone calls would require an officer to take the phone or seek phone records, all for a petty misdemeanor, the lowest level of offense that carries a fine of less than $300.

“That’s clearly not the intent. We don’t read it that way,” Aasen said. Adding that single sentence at the beginning of the section of law makes it obvious. “Now, having it in either hand is a thing. It just makes it simpler.” Ironically, Aasen said, the words added this session were in the bill back in 2019 but were taken out in conference committee.

Aasen said the rule of thumb for following the law is to think “one-touch,” that is, anything that needs more than one touch of a device or a dashboard screen is likely a violation of the distracted driving law.

James Gempeler is a defense attorney in St. Paul who does some work with traffic violations. He said he didn’t think the law change was necessary but said if it clarifies the law, it is a positive change. Gempeler said he has never tried a defense of claiming the driver was only holding a phone, not using it.

“Remember, a first-time offense is a petty misdemeanor traffic citation, meaning this argument is to a judge, not a jury,” he wrote on his website. “And, well, I think you can imagine how receptive the judge would be to such an argument.” But if some court administrators or prosecutors are not bringing cases due to an interpretation of the previous law, then the bill makes it clear.

“I don’t see the need other than trying to make it abundantly clear,” Gempeler said this week. “My guess is law enforcement and the State Patrol had enough nonsense arguments brought up that they decided to add it.

“When the statutory language otherwise says ‘voice-activated or hands-free mode,’ it seems kind of self-explanatory that I should be hands-free,” Gempeler said. “I guess it gives them the freedom that if they see a phone in your hand they can pull you over no matter what.” But he said they already have the authority, at least as he reads the law.

Gempeler said it’s his observation that cellphone violations are often used as a pretext to stop drivers, especially at night during DUI patrols. An officer might say they saw a driver looking down or saw a glow from their lap and use that to make a stop.

“All they really need is a basis to pull you over. If they have a reason to believe you are using your phone improperly, then when they interact with them they typically get the evidence they need anyways,” Gempeler said.

He also said he expects penalties for distracted driving to increase.

“I would not be surprised if they raise the stakes a little bit on the consequences, assuming distracted driving issues persist,” he said.

There remains debate as to whether hands-free calls are safer than calls made while holding phone. It is the conversation more than the method that causes the distraction, studies have shown. But banning hand-held phones by drivers was hard enough, taking years of lobbying by traffic safety advocates and family members of people killed due to distracted driving.

While Aasen and Langer already think the law is clear and drivers are already subject to citation for holding cellphones, even at arms length, the clarification will make it more clear starting Aug. 1.