You may have seen the headline “Texting and Driving Constitutes a Moving Violation” in local publications. The Daily Herald’s headline goes further, claiming that “holding your phone at all” while driving constitutes a moving violation. That could not be further from the truth.

The Electronic Communications Devices statute prohibits operating a motor vehicle on a roadway while “using an electronic communication device.” The key word here is “using.” To be found guilty of using your phone while driving, the State must prove beyond a reasonable doubt that you were using, and not just holding your phone. The word “using” is not defined by the statute, however, the Fifth District Appellate Court issued an unpublished opinion this year (People v. Rogers, 2019 IL App (5th) 160441-U) where the judges relied on Merriam-Webster’s definition of the word “use,” which is defined as “the act or practice of employing something,” and indicates that merely holding a phone in your hand while operating a motor vehicle is completely legal conduct. In that case, the defendant’s conviction was upheld because although there was not direct evidence that the defendant “used” his phone to take a photograph while driving, the circumstantial evidence of him holding his hand and phone out his window was evidence sufficient to infer and prove beyond a reasonable doubt that he was using his phone to take photos while driving.

The law controlling the use of cell phones while driving is called the Electronic Communications Devices statute, and it was modified on August 14, 2018, when Governor Rauner signed House Bill 4846, creating Public Act 100-0858, which goes into effect next month. This bill modifies statute 625 ILCS 5/12-610.2 by striking the words “second or subsequent” from the section of the law that distinguishes whether using an electronic communication device is a moving violation, so that now a first time texting and driving violation is included as a moving violation. Previously, a first offense was a fine-only, petty offense.