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What is Considered “Using” a Cell Phone in NY?

Many people after getting a ticket for using their cell phone while driving will claim that they were not  technically “using” the phone because they weren’t engaged in a conversation or because they were only holding it or moving it or picking it up or something like that.  

§ 1225-c of the NYS VTL sets forth what is defined as “use” of a mobile telephone and 1225-d sets forth what is defined as “use” of a portable electronic device.  In both sections, the definition of “use” essentially centers on holding or touching the phone to some extent.

These sections of law do set forth that to establish “using” a phone or device there would need to be a little more than a motorist just holding onto or touching a completely battery dead or otherwise turned off device.  Using a phone for example would require holding the phone in proximity of one’s ear and using a device would mean holding the device while viewing images or playing games or surfing the web, etc.  So technically speaking, just merely “holding” a device in your hand that is otherwise completely turned off wouldn’t be a violation.

Can you thus expect an “easy win” if you were issued a ticket at a time when you were just reaching for that iPhone and hadn’t turned it on and looked at the screen yet?  Not exactly, at least no more than you can expect an easy win if you feel you were given a red light ticket at a time a light was in the green phase.  If an officer issued you a cell phone ticket, you can probably expect him to testify that you were “using” your phone the same way you’d expect an officer to testify that a light was red if he issued a reg light ticket.

The point to remember is that your side is always only going to be one side of the story.  Don’t count on simply explaining to a judge or prosecutor that an officer was mistaken and that, while you had your phone or device in your hand, you weren’t technically using the phone or device according to the legal definition.  While there are many ways to successfully defend yourself from any charge, you would never want to rely on the nuanced definitions within the section of law.  While they make for good discussion, they can be easily overlooked (or not even known or understood) by an officer on the street and in court months later.

Your best bet against avoiding a conviction for using a cell or portable electronic device summons while driving is to simply not use your phone or device according to any definition of “use”.  Put it away, don’t touch it.  In other words, doing everything you can to avoid the ticket in the first place will be way more effective than relying on the nuances of the definition of “use” when it comes to these sections of law.  

Scott Feifer

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