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Feifer & Greenberg, LLP
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                                (TicketHELP)

Sections 1225-c and 1225-d of the New York State Vehicle and Traffic Law (VTL) are the relevant sections of law.

Sec 1225-c deals with mobile telephones and voice communication in particular–classic talking on the telephone situations.

Sec 1225-d deals with portable electronic devices which can mean a cell phone (data and texting transmission) as well as all other devices such as iPods, tablets, GPS, etc.

The law offers some specifics about the definition of “using”.  It discusses holding phones in proximity to one’s ear and simply holding devices in one’s hand in general.   

Anyone is free to read the law in its entirety but we can sum it up pretty quickly for you:

  1.  If a police officer thinks he observes you holding a cell phone or somehow playing around with it or paying attention to it or another gadget or device, he’s likely to give you a ticket.
  2.  With respect to phones, you will never be able to 100%  “prove” you weren’t texting or talking by simply providing a bill or other records.  When it comes to talking on the phone, people may own multiple phones (work/personal) or could have multiple lines under the same name.  There’s never a way to certify that a bill provided in court is for the same phone the officer observed on the day in question. With texting or other portable electronic device use, it’s even harder to prove anything with a bill.  There are some actions (like reading an already downloaded email or looking at pictures of your cat that were already on your phone) that may not show up on a data usage bill at all.

What does an officer need to establish in court?  

The basic elements of the charge are pretty simple.  The person issued the summons must be the operator (driver) of the vehicle, there must be a phone/device in the person’s hand and the vehicle must be in motion.  For commercial vehicles, the vehicle doesn’t even need to be in motion–devices cannot be used even while stopped at lights or in traffic.

While the basic elements may seem simple, the takeaway here shouldn’t be that these tickets are impossible to fight.  In most cases, an attorney can fight. How this is done would vary depending on where the ticket was issued, the particular circumstances, etc.  

What we warn against is reading the law and then trying to shape your use of the phone while driving based on the specific legalese.  Don’t say to yourself something like “I’m safe as long as I don’t hold the phone ‘in the immediate proximity’ of my ear.” Doesn’t matter how good your lawyer is or how smart you are or how well you’ve dissected the law–the best defense will always be avoiding the ticket in the first place and this is done by putting your phone away, leaving it out of sight and going completely hands-free while driving.

Aggressive Cell Phone Ticket Enforcement in NY

Just read the news to see how serious the issue is from both political and enforcement ends.  Officers are out there looking to cite people for phone and device violations. Look at the history of these tickets and see how quickly the attitude towards them has changed:

  • If your cell phone ticket was issued prior to February 16, 2011, there are no points added to your license if convicted.
  • For cell phone tickets issued between February 16, 2011 and October 4, 2011, a conviction for the violation adds two points to your license.
  • For cell phone tickets issued between October 5, 2011 and May 31, 2013, a conviction for the violation adds three points to your license.
  • For cell phone tickets issued on or after June 1, 2013, a conviction for the violation adds five points to your license.

Cell Phone Ticket Fines

Effective July 26, 2013, fines for texting or using a cell phone while driving are as follows:

  • For a first offense, $50 to $150.
  • For a second offense committed within 18 months, $50 to $200.
  • For a third or subsequent offense committed within 18 months, $50 to $400.

Cell Phone Ticket Defenses

The law does allow for use of a mobile telephone while driving “for the sole purpose of communicating 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.”

Other than the above emergency situations, try to avoid any use of any device whatsoever or you risk the increasingly severe consequences of driving while using a cell phone or other electronic device.

Cell Phone Ticket FAQs

Can I lose my driving privileges for a cell phone violation?

A cell phone violation is a 5 point violation.  It’s a big chunk of points, almost half of your allotted 11 total.  If this is the only violation on your record then a suspension is highly unlikely.  Of course like any violation, adding more points to an existing point on one’s record could be a problem.  Commercial drivers should be even more careful with these as an accumulation of multiple convictions can quickly lead to loss of commercial privileges.    

What if I just picked up my phone to...?

The law allows people to touch their phone to simply start or end a call.  Moreover, many people will argue they just dropped their phone or it slid somewhere and they were just quickly picking it up.  You can always make that argument but in either scenario, once a ticket has been written, you can expect an officer to testify that he saw more than a “brief” touching of the phone.

What if it was an emergency?

The law definitely has an emergency exception but that is limited to conversations with police, fire, doctors/hospitals.  Have a family member in surgery? A call from a friend with information is not covered but a call from the doctor or hospital may be.  

What if I wasn’t texting or calling but just using GPS?

This is covered by the portable electronic device section of the law.  If using GPS required you to hold the device in your hand then you are in violation.  Regardless of why a device is in use, the law wants devices to be attached to the car in some fashion that allows their use to be “hands-free”.

What if I have a witness that will testify I wasn’t holding anything in my hand?

Many people who receive tickets bring in witnesses to bolster their case and help dispute the charge in question.  You can always have a witness but the power of such witnesses may not be as great as you think. The judge knows these are friends/family and also knows no one ever brings a witness in to argue the officer’s side of it all

In courts that allow it will a prosecutor reduce my cell phone ticket to no points?

Outside NYC, plea bargaining to a lesser charge is always an available option.  While most prosecutors are open to negotiation, these tickets related to distracted driving can be an issue in certain counties/courts.  It’s a “red flag” type of situation and some prosecutors may have special policies just for these tickets that would need to be navigated in order to obtain a favorable outcome.

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