State v. Atwood

“A person commits the offense of driving a motor vehicle while using a mobile electronic device if the person, while driving a motor vehicle on a highway or premises open to the public: (a) Holds a mobile electronic device in the person’s hand; or (b) uses a mobile electronic device for any purpose.” ORS 811.507(2).

Defendant appealed a judgment for violating ORS 811.507, which prohibits the use of a cell phone while driving. He argued that the evidence was insufficient to support the violation and asserted an affirmative defense under ORS 811.507(4)(b), which permits using a cell phone with a hands-free device. “A person commits the offense of driving a motor vehicle while using a mobile electronic device if the person while driving a motor vehicle on a highway or premises open to the public: (a) Holds a mobile electronic device in the person’s hand; or (b) uses a mobile electronic device for any purpose.”  ORS 811.507. The Court found that Defendant failed to preserve his claim of insufficient evidence because he did not raise this argument at trial. The Court reasoned that the officer’s testimony provided enough basis for a rational factfinder to conclude that Defendant was using his phone, as it was undisputed that he held it when the officer observed him. Even if the claim had been preserved, the Court found the evidence sufficiently supported the trial court's conclusion that Defendant violated the statute by using or holding a cell phone while driving. The Court held that the evidence was sufficient to support the judgment and affirmed the decision.