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New Missouri texting while driving law set to replace prior law

Updated: Sep 27, 2023

With the passage of Senate Bill No. 398, the Missouri Legislature has once again taken over all regulation of texting-while-driving in Missouri. Known as the Siddens Bening Hands Free Law, the new legislation, if signed by Governor Parson, will prohibit drivers from texting, typing, browsing the internet, sending any message, or watching a video on an electronic device while operating a motor vehicle. Furthermore, it will stop drivers from holding or supporting an electronic device; making any communications, such as a phone call or voice message, unless solely using voice-operated or hands-free features and in a manner that does not distract from driving; or recording or broadcasting video, including participating in video conferences, e.g., Zoom etc.

The law does contain major exceptions such as reporting an emergency and related communication with emergency personnel; using the phone while the vehicle is lawfully stopped or parked; viewing a map for navigation purposes; and listening to audio broadcasts or digital audio recordings.

The law also does not apply to law enforcement officers and emergency vehicle operators while in the performance of official duties. Commercial vehicle drivers and bus drivers also have various exceptions for certain types of screens and communications devices under certain conditions.

It is also important to note that no driver can be “stopped, inspected, or detained solely” for driving in violation of this new law, nor can a law enforcement officer who stops a noncommercial motor vehicle for a non-hands-free violation search of the driver’s electronic communication device without first informing the driver of their right to decline such a search. The officer cannot access the device without a warrant, nor confiscate it while awaiting issuance of a warrant. Finally, the law is clear that just because someone is guilty of violating the hands-free law, that violation cannot be used to establish probable cause for any other violation of the law such as running a stop sign or driving carelessly.

Most important for local governments—the State Legislature has pre-empted local governments from regulating the use of electronic devices while driving. “State law occupies an area when it has created a comprehensive scheme on a particular area of the law, leaving no room for local control” and preempts any local act. Borron v. Farrenkopf, 5 S.W.3d 618, 624 (Mo. App. 1999). Arguably, this means that a municipality is foreclosed from adopting ANY regulation in this area, but for certain, if a municipality does, the local law must not conflict with or be more restrictive than the state law.

The law also repeals former Section 304.820 RSMo., that prohibited persons 21 years of age or younger from texting while driving.

When signed by the Governor, the law will be codified as Section 304.822 RSMo.

Municipalities that have adopted any texting while driving laws will want to review their current law’s viability considering the pre-emption contained in the new Section 304.822 RSMo.

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