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Feifer & Greenberg, LLP |
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Cell phone tickets and texting while driving

YET ANOTHER UPDATE:  As of JUNE, 2013 cell phone violation convictions in NY will result in FIVE (5) points on your license.

OK.  After the third change in less than three years to the NY cell phone driving laws, we’ve just created a new page of information.  Please go to our newest cell phone ticket page and an updated summary of the law or our main cell phone ticket page for more information.

NEWEST UPDATE:  As of 7/12/11, cell phone violation convictions in NY will result in three (3) points on your license and using a portable electronic device is no longer a secondary violation but will be considered a primary violation.

UPDATE:  As of 2/16/11, cell phone violation convictions in New York will result in two (2) points on your license.  Read about the rule change here (2 points for NY cell phone tickets) or continue reading about the violation itself below.

We get a lot of inquiries about tickets written under Section 1225 of the New York State VTL (which covers use of mobile telephones and other portable electronic devices). The following may help with some of the common questions and misconceptions concerning these distracted driving related summonses.

NY Cell Phone Law:

The cell phone laws came first. Section 1225-c became effective on December 1, 2001. The law is simple: “no person shall operate a motor vehicle upon a public highway while using a mobile telephone to engage in a call while such vehicle is in motion.” Some considerations here…

· Mobile telephones with a two way paging function are included

· “Using” means holding the telephone to, or in the “immediate proximity” (close enough to talk/listen) of one’s ear. Using speakerphone while a phone is sitting on the passenger seat or center console may be fine but it you have to hold the phone to bring it closer to your mouth/ear, then it’s no good. “Holding” is the key.

· “Engage” in a call means talking/listening but does not include activating, deactivating or initiating a function of the phone

· There is an assumption that if the phone is in the proximity of your ear that you were indeed engaged in a call. The law welcomes “evidence tending to show that the operator was not engaged in a call” to rebut this assumption.

· Emergencies are the exception to the law. You may communicate with any of the following regarding an emergency situation: an emergency response operator; a hospital, physician’s office or health clinic; an ambulance company or corps; a fire department, district or company; or a police department.

Our take on this is simple. Avoid cell phone tickets by not talking on the phone while driving. If you do get a ticket for cell phone use, you can probably forget arguing the phone wasn’t on (just holding it) or you were using speakerphone or you just pressed the button to activate bluetooth or “ignore” the incoming call or you only used it while stopped at a red light or in traffic. While these may technically be allowed under the law, an issuing officer is simply not going to agree with any of this. If the ticket was issued, the officer will be prepared to testify that he saw you in motion with the phone at or near your ear/mouth. You could always try to show “evidence” that you were not engaged in a call but remember that phone bills with itemized calls on it could easily belong to a different phone and/or an actual phone presented in court to review a phone log may simply be a different phone than the one used that day. It will be difficult to overcome the officer’s observation and the legal presumption that you were using the phone.

As for emergency exceptions, some good documentation in court and a corresponding statement to the officer on the road alerting him to the emergency (whether he believes you or not) may help.

NY Portable Electronic Device Law:

Another simple law: “no person shall operate a motor vehicle while using any portable electronic device while such vehicle is in motion.” Some considerations here:

· Section 1225-d went into effect on November 1, 2009. It defined “Portable electronic device” essentially as everything else that came around after cell phones. PDAs, anything with “mobile data access”, texting, games, ipods…all covered.

· “Operating” basically just means holding it here. With this section, there’s no proximity to the ear involved

· If you are holding the device, the presumption is you are using it. Like the cell phone section, you can offer evidence to rebut this.

· Portable excludes an item like a GPS affixed to your vehicle somehow.

· Emergency are an exception—the language is the same as that in the cell phone section.

The biggest difference with the newer law is that it is considered a secondary offense. Where an officer can observe you talking on the telephone and pull you over/issue a ticket just for that, he technically must have reasonable cause to believe you’ve committed a separate violation before ever issuing a ticket under 1225-d. He doesn’t have to issue the other ticket (“I’m giving you a warning on the red light but will cite you for using that ipod”), but must be able to state what the other violation was if he is called to testify.

Other than the secondary law issue, our take is the same with this section as it is with the cell phone section enacted eight years prior. Avoid these tickets by not using your gadgets while driving. If you do get a ticket, plan on it being very difficult to convince a judge that you weren’t somehow using the device that the officer claims you were using. Again, the best chance you’d have of getting the ticket dismissed would be good evidence of a legitimate emergency.