SECTION 1. Section 16 of chapter 90 of the General Laws, as appearing in the 2004 Official Edition, is hereby amended by adding the following paragraphs:__

“Using” means holding a hand-held mobile telephone to, or in the immediate proximity of, the user’s ear.

“Hands-free mobile telephone” means a hand-held mobile telephone that has an internal feature or function, or that is equipped with an attachment or addition, whether or not permanently part of such hand-held mobile telephone, by which a user engages in a call without the use of either hand, whether or not the use of either hand is necessary to activate, deactivate or initiate a function of such telephone.

No person shall operate a motor vehicle while using a cell phone, unless the cell phone is hands free mobile telephone.

Any person who violates this section shall be fined not more than one hundred dollars, except that the fine shall be suspended for the first time violator who provides proof of acquisition of hands-free accessory subsequent to the violation but prior to the imposition of a fine.

Any person who violates this section shall be fined not more than one hundred dollars.

A violation of this section shall not be considered as a conviction of a moving violation of the motor vehicle laws for the purpose of determining surcharges on motor vehicle premiums pursuant to section 113 of chapter 175. An insurance company doing business in the commonwealth shall not deny an individual the right to purchase a motor vehicle liability policy based on a violation of this paragraph.