New York 1 has recently reported that there will be yet another police “crackdown” on people who drive and talk on their cell phones at the same time. Crackdowns like this are becoming increasingly more common in New York, and many people are wondering what will happen to them if they are caught by the police talking on the cell phone while driving. Others may wonder what the law is relating to texting, emailing, or playing video games while driving in New York? This post attempts to answer some of those questions.
Penalties for Violating Cell Phone or PED Laws
First things first — it should be clear that talking on the cell phone or using any other portable electronic device (“PED”) while driving is literally neither a crime in nor a violation of New York law. Rather, the New York Vehicle and Traffic Law (“VTL”) sections at issue deem these uses “traffic infractions.” Thus, jail, bail, probation, etc. are not in play. Rather, these infractions are punishable only by fines which will cost you $100 for mobile phones or $150 for other portable electronic devices: “A violation of subdivision two of this section shall be a traffic infraction and shall be punishable by a fine of not more than one hundred dollars.” VTL §1225.-c(4) (mobile telephones), ” “A violation of this section shall be a traffic infraction and shall be punishable by a fine of not more than one hundred fifty dollars. . . .” VTL §1225-d(6) (portable electronic devices).
So . . . take a deep breath. It’s not the “end of the world” if you are caught doing this. In fact, many New Yorkers have probably received a parking ticket worth more than the summons they would receive for violating these laws.
In any event, the following is a summary of the infractions.
First, the law in question defines a mobile telephone as “the device used by subscribers and other users of wireless telephone service to access such service.” VTL 1225-c(1)(a). A hand-held mobile telephone is one “which a user engages in a call using at least one hand.” VTL 1225-c(1)(d). The base offense is as follows:
“Except as otherwise provided in this section, 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.”
VTL 1225-c(2)(a). This seems simple and straightforward, but one may reasonably wonder what it means to “engage in a call?” After all, someone could simply be dialing a number, answering a ring, listening to a voice mail message, or using their mobile telephone for another purpose other than literally engaging in a call. The answer is, however, contained in a definition:
“Engage in a call” shall mean talking into or listening on a hand-held mobile telephone, but shall not include holding a mobile telephone to activate, deactivate or initiate a function of such telephone.
VTL 1225-c(1)(f). Moreover, if an officer spots you holding a cell phone to your ear, you will be presumed, under the law, to be engaging in a call:
“An operator of a motor vehicle who holds a mobile telephone to, or in the immediate proximity of his or her ear while such vehicle is in motion is presumed to be engaging in a call within the meaning of this section. The presumption established by this subdivision is rebuttable by evidence tending to show that the operator was not engaged in a call.”
VTL 1225-c(1)(f). Thus, even if you were doing something other than having a conversation or “listening to” your cell phone, the law puts the burden on you to overcome or “rebut” the presumption that you were, in fact, engaging in a call.
It should be noted that the provision does not apply to people who are making emergency calls, VTL 1225-c(3)(a), a police or peace officers, members of a fire department, or emergency vehicle operators, VTL 1225-c(3)(b), or, importantly, people who are using a “hands-free mobile telephone.” VTL 1225-c(3)(c). Hands-free devices, such as bluetooth pieces, are defined as those phones or communication devices “by which a user engages in a call without the use of either hand, whether or not the use of either hand is necessary to activate, deactivate or initiate a function of such telephone.” VTL 1225-c(1)(e). Thus, using a hands-free device is not only a great safety option for you, your passengers, and others around you, but it is also the best way to avoid getting a ticket.
Portable Electronic Devices
OK, OK, I get it. I can’t make calls on my “mobile telephone,” but I can still use my iPod touch, iPhone, BlackBerry or other portable electronic device to text, email, play video games, and surf the internet while driving, right? Well, perhaps, but the rules will change after November 1, 2009 when a new law goes into effect designed to close the loophole concerning these popular gadgets.
The new provision, Vehicle and Traffic Law, 1225-d, is a very similar law that prohibits the use of those devices in much the same way as the earlier section prohibits the use of mobile telephones. That provision states, in part, that:
“. . . no person shall operate a motor vehicle while using any portable electronic device while such vehicle is in motion.”
VTL §1225-d(1). “Using” such a device means
“. . . holding [such a device] while viewing, taking or transmitting images, playing games, or composing, sending, reading, viewing, accessing, browsing, transmitting, saving or retrieving e-mail, text messages, or other electronic data.”
VTL §1225-d(1)(b). This provision also contains a similar presumption section to that found in the mobile telephone law:
“A person who holds a portable electronic device in a conspicuous manner while operating a motor vehicle is presumed to be using such device. The presumption established by this subdivision is rebuttable by evidence showing the operator was not using the device within the meaning of this section.”
VTL 1225-d(4). A similar exemption for “emergency” or “official” uses applies to the PEDs law. VTL §1225-d(3).
An interesting addendum to the PED restriction perhaps reflects a growing concern in the legislature concerning pretextual car stops which, in some cases, may raise the specter of racial profiling. Immediately after the subdivision defining the offense, the following language appears:
“Provided, however, that a summons for operating a motor vehicle in violation of this section shall only be issued when there is reasonable cause to believe that the person operating such motor vehicle has committed a violation of the laws of this state other than a violation of this section.”
VTL 1225-d(6). Thus, logically (but perhaps not practically) speaking, New York drivers may arguably text, email, surf, or play video games on their PEDs, as long as they are not committing another violation or infraction, or breaking the law in some other way. In reality, however, your safest bet, both legally and practically is not to risk it.
For more information on this and other subjects relating to the New York Vehicle and Traffic Law or Penal Law, contact the Law Offices of Galluzzo & Arnone LLP at (212) 918-4661.