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Mobile Handheld Device/Amateur Radio Laws by State?

Discussion in 'On the Road' started by W3TPL, Dec 27, 2016.

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  1. W6GRD

    W6GRD Ham Member QRZ Page

    Hence the needs for clarification. It has been stated that in San Diego a LEO (and Judge) sees it as a violation, yet Sacramento CHP claims they do not see it that way. As a layman I read as it is a offense that could legitimately lead to a stop and citation.
     
  2. AG6QR

    AG6QR Premium Subscriber QRZ Page

    Reciprocity applies to licensing and registration only, not to acts which you perform while driving. To underscore this, many states have signs as you cross their borders reminding drivers of things that are illegal in their state, which might be OK in other states. I've seen reminders of seat belt laws, laws requiring you to slow down or pull over for stopped law enforcement vehicles, laws requiring headlight use when windshield wipers are on, and even laws against handheld cell use or texting. Even when those reminders aren't posted prominently at the border, you are responsible for knowing and obeying the driving laws of the place where you are driving.
     
  3. AG6QR

    AG6QR Premium Subscriber QRZ Page

    I've heard that as well, indirectly from the CHP. That's somewhat reassuring, but it's not enough, because there are hundreds of county and city law enforcement officers who enforce traffic laws in their individual jurisdictions. The CHP generally patrols the state and federal highways, but other roads are generally up to the local officers. Guidance from the CHP is nice, and maybe some local departments will take it into consideration, but it's not binding on them all. Plus, the CHP guidance can change at a moment's notice with no legislative action.

    Unless and until a court case determines that the law excludes ham radios, there is still a possibility that a cop could issue a ticket for that, and there is a possibility that the ticket could be upheld. I suspect and hope that police departments will see the law as applying to cell phones only, and not go writing tickets against CB'ers, taxi drivers, and ham radio operators. But be careful out there!

    If there is a ticket written against a ham radio operator, it wouldn't surprise me if the first one is written after an accident occurs, where a police officer sees someone holding a microphone just before he runs over a kid in a crosswalk or something. That's the kind of situation that just might motivate the officer to look to stretch the law to see how he might stick it to the careless driver. And if it is upheld in court in that situation, it could be applied more widely afterwards.
     
  4. K4KWH

    K4KWH Ham Member QRZ Page

    And that could be a problem. But being that the legislature and CHP knows (and intends) this is for cellphones, texting, playing games, etc, it is not likely. But you are right, local cop may not be so well informed and interpret the statute to mean ANY handheld device.
    Yes. And that's why there should be an effort on US and, perhaps, ARRL, to "nip Barney Fife in the bud" with a clarification and regulation from FCC. And it does need to be tested in court with reference to FCC Brief 91-36 because there already exists strong endorsement by FCC for mobile amateur operation. Its language leaves no doubt as to their support for amateur radio in the mobile environment. Because of that wording that is in the Federal Record, and the precedent it sets, it would take a literal reversal of FCC's whole historic position to change it. If a ticket is challenged as I certainly would, I believe that current FCC law, that precedent set with 91-36 would make it difficult for a local court--as long as the law stands as is. I think the ham (or CBer or commercial operator), for that matter would WIN!

    While that is possible, the number of amateurs using their mobiles at any given moment versus the public and their cellphones is almost minuscule by comparison! The odds, I don't know. But the fact is that, while there is a risk in THAT, and any OTHER activity undertaken while driving, using a microphone doesn't really take away from one's attention all that much. And also, one is not normally looking down away from the mike, but has the mike in front of his fact, a few inches away. It would have to be a HUGE mike to block one's vision. And again, so long as the law stands as written giving sole control of radio operation to FCC, not local Bubba, so long as statistical PROOF is almost nonexistent, the burden of proof is still on the local jurisdiction to show HOW they, and not FCC, can stop an action, or ticket against an otherwise legal Federal action by a citizen.(Title 47, US Code, Comm Act of 1934) IOW, FCC currently states that you may use your mobile radio (borrowing from 91-36) "to the fullest extent possible"--assuming that all other laws regarding radio are being followed. And, too, I would LOVE to see them come up against NTIA should local yokel ticket THEM! That is, if it is for violating some other traffic law. If it was because local cop misinterpreted a local statute, or attempted to "regulate" the use of two way radio, I'd stand on the law the way it is.. I'd haul their fat *** into Federal court! I'm betting they CAN ticket me for the local traffic law, but not on the use of a radio.o_O;)
     
  5. KV6O

    KV6O Ham Member QRZ Page

    Good luck with that! States issue drivers licenses, not the Feds, and the States get to make the rules on how you can and cannot operate a vehicle. By your argument, using a cell phone should be protected because it's a FCC licensed device, just like your 2-way radio.

    I don't disagree that using a 2M radio while driving is a totally different issue than someone texting while driving, but your FCC argument isn't going to get you far.

    Steve
    KV6O
     
    AG6QR likes this.
  6. K4KWH

    K4KWH Ham Member QRZ Page

    No. There is a difference in the cellphone and a two way radio. Cellphones aren't directly regulated, or licensed TO the operator. They are a contract device user who then must agree to the terms of said contract with their provider. It is the provider that holds licenses for that service. Amateur and commercial operators are directly licensed by FCC and are, thus, subject to the rules, regulations of their service. Licensees' "contract" is with FCC, and FCC alone! FCC directly authorizes radio operation by and for the user, and specifies the privileges of said license. In addition, CB stations are also "licensed" by proxy. or a blanket license thru which a CBer may use his radio so long as he adheres to Part 95, US Code. With these differences, states may prohibit the use of a cellphone, or texting, et al, but because of some specific rules, and historic endorsement by FCC, there are statements, encouragement, and traditional approval of FULL mobile use of two way radios by licensees that, I believe, would become a stumbling block for local legislators. In other issues, FCC has been quite specific as to what local authorities can do with respect to regulating licensed two way radio whether it be interference, antennas (see PRB 1), prohibiting the use of amateur, or other two way radio, within city, county, or state boundaries (See Palm Desert, CA who briefly enacted an ordinance against ANY use of an amateur radio within their limits).

    This issue, cellphones vs amateur radio usage, is something new. For 70 years or so, people have freely operated mobile radios. IT IS SOLELY THE FAULT OF THE CELLPHONE THAT "DISTRACTED DRIVING" HAS NOW BECOME AN ISSUE! True; they are both a "radio", but differ in the way they operate and the way they are used. It is the DUPLEX nature of the cellphone that is at fault. The numbers of users of two way radios vs the overwhelming numbers of cell users at any given moment is so microscopic that finding actual cases of distracted driving caused by a microphone as opposed to the numbers of accidents involving cells, is.........like near undetectable!
    That would be one point to raise in court beyond who is REALLY in charge of the USE of a two way radio. Then forcing the prosecutor to SHOW the actual numbers of cases of distracted driving due to a radio, then defense countering with lots of documented cases of wrecks involving cellphones. These would be supporting points: rarity, proving the state's case, showing the court FCC Brief 91-36 with its opinion heavily biased in FAVOR of mobile amateur use, and forcing a ruling from FCC to strike down any local enforcement of the two way radio (other than for distracted driving itself). In other words, if a ticket is written SOLELY because a cop witnesses a licensed operator using a mike, that should not stand.
    If there IS a wreck, then by all means and the op is talking on a radio, then they should be able to cite for distracted driving IF it can be proven the radio is the cause. Just because? UNK-UNH!!! Amateur radio does NOT cause distracted driving to ANY significant degree!
     
  7. NC5P

    NC5P Ham Member QRZ Page

    New laws always produce these situations in the grey areas. The courts will have to rule on them and establish the boundaries. Sometimes the lawmakers will amend the statute but not always. This will always create unequal situations with enforcement. We have two residences in two states, that always creates problems. Most cops leave us alone but there are always a few who want to make a case about it. In one case a sergeant shut him down when he stopped my wife. I had a friend in the same situation who had to go to court, he won. We get scolded by laymen all the time who don't have a clue. We just blow them off.
     
  8. K2GOG

    K2GOG Ham Member QRZ Page

  9. WR2E

    WR2E Ham Member QRZ Page

    At what point do we draw the line between having a ham radio in the mobile and a downright disaster waiting to happen?

    I mean, seriously, should something like this even be allowed on the road? Isn't all that 'crap' distracting enough, even if he's not operating it?

    [​IMG]
     
  10. K4KWH

    K4KWH Ham Member QRZ Page

    This is obviously excessive and speaks to more serious problems involving the operator! It goes from the ridiculous to the sublime, and also is clear that the very presence of so much radio gear itself presents a hazard to the operator himself, not excluding any external distraction such would cause.o_O Why, you can't even SEE to drive! I have a "lab coat" and a straight jacket; let's see if we can catch this fellow!:eek:
    LMAO
     

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