Bill S.2290 186th (2009 - 2010)

SENATE, No. 2 290

[ February 25 , 20 10 - Text of Senate, No. 2 290 , as a new text of House Bill No. 4 475 , relative to safe driving .]

The Commonwealth of Massachusetts
 

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In the Year Two Thousand and Nine

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SECTION 1.   Section 1 of chapter 90 of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by inserting after the definition of “Depart ment” the following definition:-

“Electronic message”, a piece of digital communication that is designed or intended to be transmitted between a mobile electronic device and any other electronic device . “Electronic message” includes, but is not limited to electronic mail, electronic message, a text message, an instant message, a command or request to access an internet site, or any message that includes a keystroke entry sent between mobile electronic devices.

SECTION 2 . Said section 1 of said chapter 90, as so appearing, is hereby further amended by inserting after the definition of “Mobile construction crane” the following definition:-

“Mobile telephone”, a handheld or portable cellular, analog, wireless, satellite or digital telephone, including a telephone with two-way radio functionality, capable of sending or receiving telephone communications and with which a user initiates, terminates or engages in a call using at least one hand.

SECTION 3 .   The second paragraph of s ection 8 of said chapter 90, as so appearing, is hereby amended by inserting after clause (e) the following clause:-

(f) No person under 18 years of age shall use a mobile telephone while operating a motor vehicle on any public way.   For the purposes of this paragraph, a junior operator shall not be considered to be operating a motor vehicle if the vehicle is stationary and not located in a part of the public way intended for travel.

A junior operator who violates the preceding paragraph shall be punished by a fine of $100 and shall have his license or permit suspended for 180 days for a first offense, by a fine of $250 and shall have his license or permit suspended for 1 year for a second offense, and by a fine of $500 and shall have his license or permit suspended for 1 year for a third or subsequent offense.  

It shall be an affirmative defense for a junior operator to produce documentary or other evidence that the use of a mobile telephone that is the basis of the alleged violation was made in the case of an emergency. For the purpose of this paragraph, an emergency shall mean that the junior operator needs to communicate with another to report any of the following: (a) that the motor vehicle is disabled; (b) that medical attention or assistance is required; (c) that police intervention is necessary for the personal safety of the operator or a passenger; or (d) the presence of a disabled vehicle or an accident in the public way.

The provisions of this sub section shall be enforced by law enforcement agencies only when an operator of a motor vehicle has been stopped for a violation of the motor vehicle laws or some other offense. A penalty under this subsection shall not be a surchargeable
offense under section 113B of chapter 175 .

SECTION 4. Said section 8 of said chapter 90, as so appearing, is hereby amended by adding the following 5 paragraphs:-

Notwithstanding any provision of the first paragraph of this section, a license applicant, or applicant for the renewal of a license, age 75 years or older shall pass an examination, to be developed by the registrar in consultation with the medical advisory board established in section 8C.  The examination shall assess the ability of an applicant 75 years or older to operate a motor vehicle in a safe manner, including but not limited to the applicant’s cognitive and physical abilities .  An applicant for a license renewal shall pass an examination upon the expiration of 36 months from attainment of the age of 75 years, and every 36 months thereafter. The registry shall charge a fee not to exceed $30 for said examination.  

Before a license is granted pursuant to this subsection, the applicant shall pass an examination as to his qualifications as the registrar shall require; and no license shall be issued until the registrar or his authorized agent is satisfied that the applicant is a proper person to receive it.

An applicant age 75 years or older who has failed the examination may petition the registrar for a road test, as prescribed by the registrar, to demonstrate the requisite driving skills necessary for continued licensure. The registrar or registrar’s agent shall grant the petition to conduct a road test; provided, however, that the registrar shall not grant the petition if the registrar determines that the applicant presents a safety risk to the general public. Upon conclusion of the road test, the registrar shall determine whether licensure, or continued licensure, is warranted.

Any operator age 75 years or older, whose license to operate a motor vehicle has been suspended or revoked by the registrar pursuant to chapter 90 or section 113B of chapter 175, shall be entitled to appeal said suspension or revocation to the registrar. The registrar shall determine whether the person has demonstrated that he is capable of safely operating a motor vehicle and shall issue findings to support his determinations. The registrar shall develop standards by which this will be determined in consultation with the medical advisory board. 

Any person aggrieved by a decision of the registrar pursuant to this subsection may appeal pursuant to section 28 of chapter 90.

SECTION 5 . Chapter 90 of the General Laws is hereby further amended by inserting after section 12 the following section:-

Section 12A.   (a) No operator of a vehicle or vessel used in public transportation, including a train, passenger bus, school bus or other vehicle used to transport pupils, taxi, passenger ferry boat, water shuttle or other equipment used in public transportation owned by, or operated under the authority of the Massachusetts Bay Transportation Authority, the Woods Hole, Martha's Vineyard & Nantucket Steamship Authority, Massachusetts Port Authority, or state transportation department, shall use a mobile telephone, hands-free mobile telephone or other mobile electronic device while operating such vehicle or vessel. Whoever violates this section shall be punished by a fine of $500.   A violation of the preceding sentence shall be a moving violation for purposes of the safe driver insurance plan under section 113B of chapter 175.

(c) It shall be an affirmative defense for an operator under this section to produce documentary or other evidence that the use of a mobile telephone that is the basis of the alleged violation was made in the case of an emergency. For the purpose of this paragraph, an emergency shall mean that the operator needs to communicate with another to report any of the following: (a) that the vehicle or vessel is disabled; (b) that medical attention or assistance is required on the vehicle or vessel; (c) that police intervention is necessary for the personal safety of a passenger or to otherwise ensure the safety of the passengers; or (d) the presence of a disabled vehicle or an accident on a roadway.

SECTION 6 . Chapter 90 of the General Laws is hereby further amended by inserting after section 13A the following section:-

Section 13B.   (a)   No operator of a motor vehicle shall use a mobile telephone, or any device capable of accessing the internet, to compose, send, or read an electronic message while operating a motor vehicle. For the purposes of this section, an operator shall not be considered to be operating a motor vehicle if the vehicle is stationary and not located in a part of the public way intended for travel.

(b)     A violation of this section shall be punishable by a fine of $100 for a first offense, by a fine of $250 for a second offense and by a fine of $500 for a third or subsequent offense.  

(c) The provisions of this section shall be enforced by law enforcement agencies only when an operator of a motor vehicle has been stopped for a violation of the motor vehicle laws or some other offense . A penalty under this section shall not be a surchargeable
offense under section 113B of chapter 175 .

SECTION 7 . Section 22(b) of Chapter 90 of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by adding at the end thereof the following:

In any hearing where an applicant age 75 years or older  has potential suspension or revocation is due in whole or in part to the operator’s physical or mental handicap, the hearing shall be held within 14 days of the event which prompted the registrar to initiate said hearing, unless otherwise agreed upon by the involved parties. The registrar will consider all written and oral submissions by any interested parties at said hearing, and any and all medical evidence offered shall be made public for purposes of said hearing only. Any public record of said hearing shall have any and all medical evidence redacted, and any person, entity or agency present at said hearing that later disseminates said medical evidence without permission from the operator shall be liable to the operator for a sum of not less than $1,000 and not more than $5,000 for each violation under this section. For purposes of said hearing, medical evidence shall only be accepted if reported or recorded by a qualified, licensed medical professional. The registrar shall notify the involved parties in writing of his decision whether or not to revoke the operator’s license no later than 7 days after the hearing.

SECTION 8. Said Chapter 90 is hereby further amended by inserting after Section 22H the following new section:-

Section 22I. (a) As used in this section, the following words shall have the following meaning:-

  "Health care provider'', a registered nurse, licensed practical nurse, physician, physician assistant, occupational therapist, physical therapist, optometrist, ophthalmologist or podiatrist who is a licensed health care provider under the provisions of chapter 112.

(b) If a health care provider or law enforcement officer has good cause to believe that an operator is not physically or medically capable to safely operate a motor vehicle, the provider or officer may make a report to the registrar, requesting medical evaluation, as the registrar may prescribe. Said report shall state the provider’s or officer’s good faith belief that the operator cannot safely operate a motor vehicle.   Any health care provider who makes such report and states his good faith belief shall file said report with the registrar. Said report shall be based upon personal observation, physical evidence, or, in the case of a law enforcement officer, an investigation, which shall be described in the report.

A health care provider or law enforcement officer who reports, in good faith, pursuant to this section shall be immune from civil liability that might otherwise result from making the report.  A health care provider or law enforcement officer who does not report shall be immune from civil liability that might otherwise result from not making the report.

Upon receipt of said report, the registrar shall suspend the license of said operator. Not later than 30 days after receipt of said report the registrar shall conduct a review to determine the operator’s capacity for continued licensure to operator a motor vehicle.

(c) Reports to the registry pursuant to this section shall be confidential and shall be used by the registrar only to determine a person’s qualifications to operate a motor vehicle.  All reports made and all medical records reviewed and maintained by the registry under this section shall be confidential, except upon order of a court of competent jurisdiction.

A report made pursuant to this section shall not be a public record as defined in section 7 of chapter 4.

The registrar shall include the information about the procedures authorized in this section on the electronic website of the registrar.

SECTION 9. Section 24 of chapter 90, as so appearing, is hereby amended by inserting after the words “motor vehicle”, in line 730, the following words :- or whoever while operating a motor vehicle in violation of section 12A or section 13B, such violation proved beyond a reasonable doubt, is the proximate cause of injury to any other person, vehicle or property by operating said motor vehicle negligently so that the lives or safety of the public might be endangered.

SECTION 10. Section 113B of Chapter 175 of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by striking out the fourteenth paragraph and inserting in place thereof the following paragraph:-

Upon receiving notification from the merit rating board that a driver has had 3 surchargeable incidents within the past 24 months, the registrar shall, after a hearing based solely on the accuracy of the merit rating board’s records, require the driver to participate in and complete a driver education program satisfactory to the registrar. If the driver fails to provide to the registrar proof of completion of the driver education program within 90 days after the registrar mails to the driver notice of the requirement, the registrar shall suspend the driver’s license or right to operate a motor vehicle until the registrar receives proof of completion of the driver education program.

SECTION 11 . Section 30A½ of chapter 166 of the acts of 2009 shall not apply to Section 1.

SECTION 1 2.   Section 10 of this act shall apply to surchargeable offenses that occur on or after the effective date of this act.