State Appeals Court: Motorist didn't break law when he checked phone for who's calling while driving

A motorist was not breaking the law when he picked up and glanced at his ringing cellphone while behind the wheel to see who was calling before he crashed his truck, a state Court of Appeals panel ruled Monday.

The precedent-setting ruling reverses the McLeod County District Court jury's petty misdemeanor conviction in September of Roger A. Gutzke, 77, for using his cellphone while hauling soybeans on Oct. 8, 2021, from his farm home north of Glencoe to a farm co-op in nearby Brownton. The conviction carried an $85 fine.

"Because the state's evidence did not establish that Gutzke's cellphone use violated [the state's distracted driving law], we reverse that conviction," Judge Kevin Ross wrote for the three-judge panel.

However, the judges further cited a legislative amendment to the law that took effect after Gutzke's appeal was filed that "now prohibits a motorist from even 'holding a wireless communications device with one or both hands' while operating a motor vehicle."

State Patrol Lt. Gordon Shank said Monday afternoon that "we are glad that the change in that hands-free law addresses this specific area of cellphone use in a vehicle. We know that even a few seconds to check a phone can be deadly."

Before the amendment, the statute more narrowly defined prohibiting a driver "from using a wireless communications device to ... initiate, compose, send, retrieve, or read an electronic message" while operating a vehicle.

In Gutzke's case, according to his own words, he merely pulled out and looked at his phone, which showed the call being labeled as spam.

The Appeals Court filing included the District Court testimony from a sheriff's deputy who interviewed Gutzke shortly after the crash:

Gutzke explained to the deputy that "I looked down to see my phone because [it] was ringin', and I pulled it out and seen it was a [spam caller]. ... That's when I went over to the grass" and into the ditch.

The ruling acknowledged that although Gutzke grabbing his cellphone "distracted him and, in fact, resulted in a consequence the Legislature clearly sought to avoid by penalizing cellphone use by driving," his conduct was not illegal at the time.

The judges said they were not convinced by the prosecution's argument that "the Legislature intended to criminalize even picking up a cellphone under the provision. ... We read criminal statutes strictly, because only conduct the Legislature has clearly defined as criminal can warrant punishment."

No one with the McLeod County Attorney's Office was available Monday to say whether it intends to appeal the case to the state Supreme Court.

Gutzke argued that a change in the law after his crash prohibited license suspensions solely for failure to pay a fine. However, the appeals panel said the law's revision changed only the reason for the suspension and not the penalty that was in place at the time of his violation.

Sean McGuire, Gutzke's attorney, declined to react to the judges' two rulings, citing the potential for either side to take their arguments to the state's highest court.