Feifer & Greenberg, LLP

NY Cell Phone Ticket Lawyer

NY cell phone ticket lawyer

As experienced NY cell phone ticket lawyers,  we are quite familiar with Sections 1225-c and 1225-d of the New York State Vehicle and Traffic Law (VTL), which are the relevant sections of law.

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

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

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

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.  Concerning phones, you will never be able to 100%  “prove” you weren’t texting or talking by simply providing a bill or other records.  When talking on the phone, people may own multiple phones (work/personal) or 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 devices, it’s even harder to prove anything with a bill.  Some actions (like reading an already downloaded email or starting to type a text that is never sent or looking at pictures of your cat that were already on your phone) would not show up on a data usage bill.
  3. An exception is carved out of the law for emergency use of a device.  Documented communication with a doctor or hospital or police concerning an urgent matter is permitted.  

WHAT DOES AN OFFICER NEED TO ESTABLISH IN COURT?

The essential elements of the charge are simple.  The person who 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.  The vehicle doesn’t need to be in motion for commercial vehicles–devices cannot be used even while stopped at lights or in traffic.

While the basic elements may seem simple, the takeaway shouldn’t be that these tickets are impossible to fight.  A good NY cell phone ticket lawyer can always fight and have a legitimate chance to avoid or reduce the consequences of the conviction.  How this is done would vary depending on where the ticket was issued, the particular circumstances, etc.  

We warn against reading the law and then trying to shape your phone use 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.” It doesn’t matter how good your NY cell phone ticket lawyer is, 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 happens by putting your phone away, leaving it out of sight and remaining fully hands-free while driving.

AGGRESSIVE CELL PHONE TICKET ENFORCEMENT IN NY

Just read the news and pay attention to the public service announcements to see how serious the issue of distracted driving 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 changed:

WHAT ARE POSSIBLE CELL PHONE TICKET FINES?

Fines for NY cell phone tickets can range from a relatively small amount to a few hundred dollars depending on a few factors, including:

If you are convicted of a cell phone ticket in New York, your fine may be as low as $50 but it can certainly be significantly more depending on your past driving history, the particular circumstances and where (which court) you are pulled over.

On top of any fines, NYS tickets will always have some surcharge added and if any driver accumulates 6 or more points a Driver Responsibility Assessment Fee (DRA) will be charged. The DRA starts at $300 for 6 points and $75 for each additional point over 6 will be added. DRA is paid directly to the Department of Motor Vehicles (DMV) and is separate from the ticket fine.

Can I Pay A Cellphone Ticket Online?

You’ll always have the option to just plead guilty if you decide that this is what you want to do. Courts like this–it’s less work and more money for them. Whether you can pay online or not depends on the court and the situation. Some courts have online payment as an option, some will accept by mail and some may require you to come in person if that’s their procedure or if a driving record isn’t a good one. We understand that some people won’t want to spend any time or lawyer fees fighting a ticket but we urge everyone to know exactly what they are pleading guilty to and what the consequences are before they decide to take such an action. At very least, it’s worth a phone call to a firm like ours.

DOES A CELL PHONE TICKET GO ON YOUR RECORD?

Yes, all cell phone tickets or other moving violations become part of your driving record. Employers can see convictions, and insurers can see convictions, and of course, if too many points are accumulated from these convictions (11 points in 18 months is a rule of thumb), then that person may be subject to license suspension. The consequences of just a single ticket or two can, in some cases, be severe.

How Can I Get A Cell Phone Ticket Dismissed?

If you received your cell phone ticket in any of New York City’s five boroughs, plea bargains to negotiate your ticket down to a lesser charge are not allowed. At the NYC Traffic Violations Bureau (TVB) there will be a hearing for a cell phone ticket that will end either guilty as charged or case dismissed. Of course our goal here would be to get the case dismissed.

A judge in a typical cell phone hearing/trial is looking for a few main points such as whether the car in question was in motion and whether the device was in the operator’s hand. There are also a number of smaller points and observations that must be made and established. There’s always a legitimate chance that a cell phone ticket will be dismissed after a hearing.

However, if you received your ticket anywhere else in New York, an experienced cell phone ticket lawyer may be able to reduce your cell phone ticket to a lesser charge, either one with fewer points or preferably a non-moving violation altogether like a parking ticket. This might be a better option than proceeding to a full trial in many courts.

WHAT ARE POSSIBLE CELL PHONE TICKET DEFENSES?

One should typically look at the law to determine what possible defenses might assist your case.  With this violation, a person might argue that they were stopped in traffic or at a light and thus not in “motion” or that they were holding something else altogether.  While we see many unrepresented people make such arguments, it’s difficult in most cases to just argue “I didn’t do it” by stating things such as the light was green or I wasn’t speeding or, in this case, I wasn’t in motion.  Officers are quite likely to see it differently.  The real “defense” would be a documented emergency use.  All this said, YOU DO NOT ALWAYS NEED SOME DEFENSE TO EFFECTIVELY FIGHT A TRAFFIC TICKET!  The officer must prove his or her case.  The burden is on the officer.  Often we can simply poke holes in the consistency and/or quality of the officer’s case and that can lead to a dismissal or reduction of the charge whether the judge believes you were using your phone or not. 

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 accumulating multiple convictions can quickly lead to the loss of commercial privileges.

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

The law allows people to simply touch their phone to 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? The law has an emergency exception limited to conversations with police, fire departments, doctors, and 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?

The portable electronic device section of the law covers this. If using GPS requires holding the device in your hand, 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 witnesses to bolster their case and help dispute the charge. You can always have a witness, but such witnesses’ power may not be as good as you think. The judge knows these are friends/family and knows no one ever brings a witness in to argue the officer’s side.

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 to obtain a favorable outcome.

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