How to Beat a Cell Phone Ticket in NY

Man using a smartphone while driving a car

 

New York is very serious about it’s cell phone use driving laws, taking what was a zero point ticket just a few years ago and then raising it to two, then three and finally the current five points on your driving record.   Sometimes it seems that even thinking about using your phone is illegal, especially in NYC under Mayor Bill de Blasio’s Vision Zero Initiative. Enforcement officers are constantly on the lookout for any driver who is texting or talking on their phone or otherwise holding a phone in their hand or even looking down or appearing distracted by something while their vehicle is in motion.  

 

There’s no doubt that driving while distracted and using a cell phone is a dangerous act we should all avoid.  That said, a conviction on a ticket for cell phone use in New York can cost you–the 5 points on your license, fines, surcharges, potential assessments and insurance increases.  The hyper aggressive enforcement along with the severe penalties means there are a lot of people potentially in a tough spot and trying to figure out what to do about a recent cell phone ticket.  Here are some tips for how to fight and hopefully beat a cell phone ticket in NY.

1. Plead Not Guilty

As with any kind of traffic violation charge against you, your first decision is simply whether to plead guilty and accept the penalties that come with the ticket or plead not guilty and try to fight and eliminate or at least reduce those potential penalties.  Thus, step one when trying to avoid the consequences of a cell phone or texting conviction is merely entering a not guilty plea.  This is generally doable by mail or online depending on the court handling the case.  Once the plea is entered you’ll then have a court date scheduled and will wait for your day in court to arrive.

2. Prepare for Court

First understand the procedure in the court you will be visiting.  There are essentially two “types” of traffic courts in New York State–the Traffic Violations Bureau (NYC traffic courts) and all the local county, city, town and village courts throughout the state.  The local courts will allow for plea bargaining (albeit they won’t all do it the same way or offer the same deals) where the TVB does not.  If you’re heading to a local, negotiable court, get a copy of your driving record to show it off if it’s clean.  Always take a close look at your ticket and review it to see if there are any obvious flaws because it can’t hurt to show those in court.  If you feel the officer made a big mistake, you can try to get a copy of your phone bill and data reports but note that this is NOT a surefire way out of a ticket–”using” a phone can be as simple as holding it in your hand even if it’s turned off.  Moreover, there’s never proof that the bill in question is actually for the phone that was in the car at the time of the incident.  Nonetheless, a bill can’t hurt.  If you are claiming it was an emergency use as allowed per the vehicle and traffic law, then make sure you have it all properly documented.  Finally, it never hurts to take a defensive driving class in preparation for court.  It’s good for your record and your insurance and in some cases perhaps it will impress a judge or prosecutor reviewing your situation.  

3. “Fight” that Ticket.

If you are in a court where there is a prosecutor and they are willing to negotiate, your goal is to get the ticket reduced to a lesser charge.  Cell phone (and the very similar portable electronic device ticket) carry five points on your license.  Ideally you want fewer points than that–this is what a successful plea bargain is all about.  If the prosecutor won’t negotiate or is offering a reduction you don’t want to accept, you’ll always have the option to proceed to trial.  If you’re at the TVB in NYC, you’ll have no choice but to proceed to trial.  At any trial, the idea is to ask the officer questions regarding what he observed and what he remembers and how he remembers all the details.  Don’t be afraid to be specific and question the officer regarding where he was, how he observed you, from what angle he observed you, what hand did he observe the device in, was it by your ear (which ear), your mouth, down by your lap, etc.  Perhaps you can trip him up or catch him in a contradiction along the way.  Trials are never easy and of course officers and judges in revenue raising courts have an incentive to convict.  All you can do is ask the questions and do your best.  Many people assume they can just hope the officer doesn’t show up or keep rescheduling a case until the officer doesn’t show up or keep rescheduling a case until any points would be “old” and “off the record”.  Unfortunately, officers do mostly show up and you cannot avoid points simply by pushing a case off–these are not effective strategies for fighting cell phone and texting tickets.  

 

Regardless of your circumstances, we’re always here to consult if you’d like to make sure you are making the best choices for your case. If you’ve been issued a cell phone ticket in New York, contact the attorneys at Feifer & Greenberg today for a free consultation.