Don't be stupidAs of January 1, 2021, Virginia makes merely holding a cell phone while driving unlawful under Virginia Code § 46.2-818.2. The penalty for a first time offense is $125 and the penalty goes up to $250 for a second offense or if the offense occurred in a work zone. The law reads as follows:

A. It is unlawful for any person, while driving a moving motor vehicle on the highways in the Commonwealth, to hold a handheld personal communications device.

B. The provisions of this section shall not apply to:

1. The operator of any emergency vehicle while he is engaged in the performance of his official duties;

2. An operator who is lawfully parked or stopped;

3. Any person using a handheld personal communications device to report an emergency;

4. The use of an amateur or a citizens band radio; or

5. The operator of any Department of Transportation vehicle or vehicle operated pursuant to the Department of Transportation safety service patrol program or pursuant to a contract with the Department of Transportation for, or that includes, traffic incident management services as defined in subsection B of § 46.2-920.1 during the performance of traffic incident management services.

C. A violation of this section is a traffic infraction punishable, for a first offense, by a fine of $125 and, for a second or subsequent offense, by a fine of $250. If a violation of this section occurs in a highway work zone, it shall be punishable by a mandatory fine of $250.

Since this code section did not specify the amount of points for this offense, our office spoke with the Virginia DMV and they indicated to us that a conviction of driving while holding a phone carries negative three points if the offense is charged under 46.2-818.2(A) but negative six points if charged under any other part of 46.2-818.2. This doesn’t makes any sense to me since section A is the teeth of the law and the other parts of the law are the exceptions and definitions. But that is the Virginia DMV for you. My conclusion is that a conviction under this code section will carry either 3 or 6 points depending on how the officer and clerks input the ticket into their system.

Previously, the law was more narrow and outlawed texting or reading texts or emails on a phone. The previous law under Virginia Code § 46.2-1078.1 has now been repealed for this new broader version that prohibits simply holding a phone. This law is a primary offense which means the officer can pull you over for this offense as the actual reason for your traffic stop.

Please call 757-932-0464 if you need a consultation in traffic law for your case in Virginia.

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