The objections of two Nogales City Council members to a texting-while-driving ban were not enough to stop the council from passing an ordinance to prohibit handheld phone use while driving, but it appears they did delay the measure’s passage long enough to render it unenforceable.
On May 1, the mayor and council approved the second reading of a city ordinance that would ban all but hands-free phone use while driving.
But House Bill 2318, a similar statewide hands-free measure signed by Gov. Doug Ducey on April 22, will prevent the city from issuing penalties for violations before Jan. 1, 2021, said Ken Strobeck, executive director of the League of Arizona Cities and Towns.
“My understanding is that, if (the local ordinance) wasn’t in place before the effective date of (House Bill) 2318, that they can’t have penalties that go into effect after that date,” he said.
HB 2318 was classified as an emergency order, meaning that it took effect immediately when signed into law. However, it includes a warning period until Jan. 1, 2021, during which law enforcement can issue citations, but not fines, to motorists who violate it.
At issue is state law’s pre-emption of similar local rules. Although Nogales’ ordinance includes minor differences from the state law, including different rules around phone use while a car is stopped and different fines for violations, the local ordinance will be overruled by state law.
“When the legislature asserts something as a matter of statewide concern and enacts a pre-emption it doesn’t have to be mirroring word-for-word whatever a local ordinance is,” Strobeck said. “They’re basically pre-empting the field, and in this case the field is the use of handheld communication devices in your car.”
That means that all municipalities with local handheld phone bans will have to update their local rules to reflect the state law’s language, with one caveat: “The warning period does not apply to cities and towns that had a hands-free ordinance in effect prior to April 22,” the League of Cities and Towns wrote in a memo dated May 1.
Interim City Attorney Michael Massee did not respond to a request for his legal interpretation.
Nogales did have a chance to pass the local ordinance prior to the state law. It was put to a first reading at the city council’s meeting on April 17, and if it had passed unanimously, the council could have skipped the second reading.
However, council members Jorge Maldonado and Marcelino Varona, Jr. voted against the measure on April 17, forcing it to the second reading at the council’s next meeting on May 1, nine days after Gov. Doug Ducey signed the state bill into law.
During the April 17 meeting, Varona suggested that the council schedule a study session before taking action. “I don’t understand, why are we in a rush for this,” he said.