Hurley Burish and Stanton, SC Attorneys at law

Texting While Driving Legislation

Authors: Attorney John C. Mitby & Law Clerk Sarah E. Schuchardt

Phone: 608-575-4077


New Legislation Pending to Modernize Texting While Driving Statute

The Wisconsin Association for Justice is promoting a bill that will modernize Wisconsin’s text messaging statute. The bill will expand the prohibited activities to entering, transmitting, or accessing data while driving. This language will cover a range of activities, not just texting.1 The bill proposal includes an absolute prohibition on the use of electronic devices while driving, with exceptions for GPS devices, built-in navigation/entertainment, and phone calls. It will also increase the penalty to a fine between $100 and $400. The current penalty for texting while driving starts at $20, and the maximum fine is $400.2 This increase will put Wisconsin penalties on the same level as those in neighboring states. In addition to these changes, the bill also plans to clarify that deaths caused by texting while driving are punishable under Wis. Stat. § 940.10, titled “Homicide by negligent operation of vehicle,” which is a felony.3

Texting while driving is currently covered under Wis. Stat. § 346.89, which is titled “Inattentive driving.”4 The statute covers a range of behavior that would affect a person’s ability to operate a vehicle safely by including a blanket prohibition on a person being “engaged or occupied with an activity, other than driving the vehicle, that interferes or reasonably appears to interfere with the person’s ability to drive the vehicle safely.”5 Another subsection specifically addresses texting while driving: “No person may drive . . . any motor vehicle while composing or sending an electronic text message or an electronic mail message.”6 The statute includes exceptions for emergency vehicle drivers, amateur radio operators with a valid license, GPS devices, devices whose primary function is to transmit emergency messages, and for hands-free devices.7 The statute also contains a complete prohibition on the use of electronic devices while driving for any person who has a probationary license or an instruction permit unless the device is being used to report an emergency.8

The current ticket for distracted driving is a fine between $20 and $400.9 The ticket also includes four demerit points for regular drivers and eight demerit points for drivers with an instruction permit or probationary license.10

Texting while driving is alarmingly common and is also dangerous. The National Highway Traffic Safety Administration (NHTSA) reported that 3,477 people were killed as a result of distracted driving in 2015.11 The Wisconsin Department of Transportation reported that 25,596 crashes occurred in 2016 in Wisconsin as a result of inattentive driving, with 120 of those resulting in deaths.12

Since distracted driving is so ubiquitous, this legislation would help to crack down on smartphone usage by drivers and will hopefully provide an increased deterrent effect if passed. In the meantime, law enforcement is brainstorming new ways to identify distracted drivers, including having deputies ride public buses to spot drivers on their phones and then passing the information on to officers in squad cars.13

[1] Mark Schaaf, Wanggaard bill would toughen distracted driving penalties, The Journal Times, June 22, 2017,

[2] Matthew DeFour, Lawmakers want tougher penalties for using smart phones while driving, Wisconsin State Journal, June 23, 2017,

[3] Wis. Stat. § 940.10.

[4] Wis. Stat. § 346.89.

[5] Id. at 346.89(1).

[6] Id. at 346.89(3)(a).

[7] Id. at 346.89(3)(b)1.-4.

[8] Id. at 346.89(4)(a).

[9] DeFour, supra note 2.

[10] Parth Shah, Wisconsin Distracted Driving Crashes Up 8 Percent In 2015, Wisconsin Public Radio (March 14, 2016, 12:50 PM),

[11] National Highway Traffic Safety Administration, Distracted Driving, United States Department of Transportation,

[12] DeFour, supra note 2.

[13] DeFour, supra note 2.