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11 May2022


Can I speak on my cell phone while driving in NY?

We’ve all been in the position where our phone rings while we’re driving or we remember that we need to make an important call.  Fortunately, the hands free bluetooth connections that were a luxury when distracted driving first became a prominent issue are now a basic feature in most cars.  Unfortunately, there are still people who simply don’t want to follow the law as well as legacy systems, voice recognition issues, private calls people don’t want to share with passengers and a number of other reasons people still find reason to pick up their phone to make or take a call while driving. 

The last decade plus has seen a huge increase in both cell phone reliance and usage as well as states implementing more strict cell phone laws and enforcement, NY included.  What are the rules in NY?  How and when are drivers permitted to talk on the phone while driving a car in New York?  What are the penalties if convicted of talking on my phone while driving?

Can I speak on my cell phone while driving in NY?

The Vehicle and Traffic Laws in New York essentially prohibits a driver of a vehicle from using a cell phone or “portable electronic device” while operating a vehicle in motion.

“Using” is defined as holding in one’s hand.  If you can operate the phone and make a call using bluetooth or by pressing a single button and then putting the phone down in a holder or bracket of sorts, that’s permitted.  

“Portable electronic device” was a concept added to the initial cell phone law once the law caught up with all the technology that was in our hand but might not be used as a traditional phone communication device held up to one’s mouth and ear. Handheld GPS units, iPods, even the phone itself used for purposes other than a traditional call, texting perhaps the most popular of these other uses.

Contesting cell phone tickets in NY isn’t as simple as stating “I wasn’t on a call” or even producing a phone bill. A phone bill won’t show the text you were composing before hitting send or the pictures of your cat already on your phone that you were scrolling through. Even a phone bill doesn’t “prove” whether a call was made or taken. People have multiple lines on a bill, work and personal phones, etc. No matter what bill you produce, there’s still an officer affirming what was observed and no way to know for certain that the bill presented was for the alleged phone in question. 

So the answer is “yes”, you can speak on your phone and interact with your phone while driving, but it must be via hands free technology.  All that tech we have that comes with the car these days (big screens, GPS, satellite radio, safety features, etc.) perhaps can be a distraction in some situations but remains legal because it is all built into the car itself and could not be handheld.  It’s even legal to operate your phone by hand as much as you want if it too is effectively attached/built in to the car via a holder or clip of some sort similar to what you often see an Uber driver legally using.  

Who You Can Call While Driving

Start with the premise that you can call anyone you want while driving if you do it legally. The question here is more likely whether there are any exceptions where I can legally use my phone to make a call while driving.  

In NY, there is an emergency exception and you can legally speak on the phone while driving only if you are speaking regarding certain emergency situations and with certain people or services.  You may know of or observe a friend or family member or anyone else in what you consider to be an emergency situation.  A call with another family or friend about the situation will be viewed differently than a call with a hospital or doctor or police might be.

It is also worth noting that “driving” for our purposes here means “in motion”.  The vehicle is driven by an “operator”and the vehicle is either in motion or not.  The law addresses cell phone and device use while a vehicle is not in motion by drawing a line between commercial vehicles and ordinary private vehicles.  A CDL license holder driving a commercial vehicle cannot use their phone or device even while stopped where a driver of a private vehicle can.  

Our advice would be to not test and push the limits of the law.  The more you hold your phone or device while driving, the more likely it is that you get a ticket and the less likely it is that you are fully focused on the task at hand.  

Fines for Talking on Your Cell Phone While Driving in NY

In New York State, drivers who are caught and convicted of speaking on the phone while driving will be fined. The reality with the fines is that when you consider the hundreds of different courts and different situations and driving records–including potential repeat offenders of this same violation–you will see a wide range of fines and a mandatory surcharge on top of every one of these fines.  We see ranges from $100 to a few hundred dollars. 

The fine and surcharge due to the court is only part of the potential expense of using your phone while driving.  There are other potential expenses as well.

Can a cell phone ticket affect your insurance?

Yes, a cell phone ticket can definitely affect your insurance rates.  Insurers are concerned with the odds of someone causing damage to their vehicle or person or other vehicle or person.  Talking, texting and other typical illegal usages of a phone while driving make a driver an increased risk to insure.  There are always other factors that go into insurance rates but who would you generally charge more to insure against an accident–the driver who is 100% focused or the one who isn’t?  

Cell Phones and the Driver Violation Point System

If you are caught using your phone by the police and convicted of the violation in NY, five points will be added to your NY driver violation record. 

The New York Department of Motor Vehicles point system seems to be roughly based on how much certain violations may endanger other drivers and/or pedestrians.  For example, failing to wear a seatbelt doesn’t carry any points (danger to yourself), where using a phone or speeding or going through a red light does carry points.  Paper violations (for ex. no insurance, no registration) might come with loss of license or high fines but there is no additional actual physical danger to others and thus no points.  

We can infer what the DMV thinks about cell phone usage and texting while driving based on the points assessed for the violation.  This first appeared as a law that carried zero points.  It has since been changed to two points, then three points and finally to the current value of five license points.  Distracted driving has consistently increased as a potentially dangerous distraction and the DMV has adapted their stance and the law as use in society of these devices evolves.  We know of almost no other violation that has changed point values over time and certainly no other violation that has changed so many times and so severely.  

Points come with an expense attached as well.  If you accumulate six points at any time on your driving record you will be assessed a $300 Driver Responsibility Assessment fee and that number goes up by $75 for every point after six.  

Getting Ticketed for Using Your Phone While Driving

There are police officers all over NY who specifically watch for people violating the law by using their phones while driving. There are also officers who will stop you if they happen to observe a potential violation while they weren’t necessarily looking. Many violations are more likely to occur in areas where police are specifically looking, like speeding on a highway compared to a local road or improper turns at the most congested areas compared to less traveled areas.

Cell phone usage is a little different. There’s no “typical” place where we may see these violations or where they may pose a greater danger. People use their phones and devices in all kinds of situations and it can have a disastrous effect on a small residential street where kids are playing just as much as it could on a highway where many vehicles are driving. 

Distracted Driving: What is it?

While the laws focus on certain types of distracted driving, it’s definition is really any activity that takes your attention off the road. This can include illegally talking or texting or checking directions on your phone or legally fiddling with car controls, grooming, tending to pets or children, reaching for items in the backseat, etc.  

It’s all dangerous, no matter what you are doing while driving.  Please do your best to drive distraction free regardless of the nuances regarding what is legal and what is not.  

Feifer & Greenberg Can Help With Your Cell Phone Ticket

Our New York traffic ticket lawyers help you fight your cell phone and texting tickets anywhere in NY.  Our goal is always to eliminate or reduce the potential penalties someone charged with a distracted driving violation might be facing.  We can usually do this without you coming to court.

We offer free consults and are happy to answer any questions you may have.  To learn more, call us today at (888) 842-5384 or contact us through our Tickethelp.com site if you are worried about the consequences of a ticket you have received.