NYS Cell Phone Law
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New York State Cell Phone Law

Defending your cell phone violation ticket

 

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New York State now has the toughest laws prohibiting cell phone use while operating a motor vehicle. Effective May 31, 2013 any violation for  using a cell phone while operating a motor vehicle carries with it a 5 point  accrual, a large insurance premium increase, a hefty fine, and a suspendable  offense if the operator has junior or probationary use privileges as follows:

Old Law

Cell Phone and Texting  Convictions

New Law

Cell Phone and Texting  Convictions

License

Suspension

Revocation

Points

Suspension

Revocation

Points

Probationary

No

No

3

60 days for first conviction

6 months for subsequent  conviction within 6 months of license restoration

5

Junior

No

No

3

60 days for first conviction

60 days for subsequent  conviction within 6 months of license restoration

5

With  this new point increase, a NY cell phone violation is a very serious matter.  A conviction in New York State is regulatorily on par with a conviction reckless driving (a crime and 5 points), and the  infraction of passing a stopped school bus (5 points). It is now considered  worse than having malfunctioning brakes (a crime and 4 points) and the NY  State infraction of following too close / tail gaiting (4 points). It is also  now a worse violation than most of the New York State speeding charges, failure  to restrain a minor or infant (3 points), and a railroad crossing violation  (3 points).

The  tougher penalties were motivated by NYS DMV statistics which showed that From  2005 to 2011 there has been a 143% increase in cell phone-related crashes  in New York State; In 2011 there were 25,165 fatal and personal injury crashes  involving distracted driving in New York.between 2011 and 2012 New York State experienced a 234% increase in the number of tickets issued for texting while driving. 

The Statutes

New York State has 2 statutes  that prohibit the use of cell phones or mobile devices when operating a motor  vehicle. One is contained in NY VTL 1225-C, prohibition against using a  cell phone to engage in a call, and NY VTL 1225-D prohibition against using  a cell phone to send or receive text messages.

The prohibited conduct:

NY VTL 1225C(2)(a) simply states that “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.” So the elements that the state of New York must prove to find a person guilty of the charge are that the defendant:

  • Operated a motor vehicle on a public highway
  • While using a mobile telephone
  • To engage in a call while the vehicle is in motion

 
How to defend your NY cell phone ticket

Clearly if you were given a ticket because you were using your cell phone in the parking lot of a strip mall the ticket is invalid. Likewise if you were using your phone while stationary at a traffic light or in a traffic jam the ticket would be invalid. However what does it mean to “use” a mobile telephone? What does it mean to be “engaged in a call?” Defense of a New York cell phone ticket turns on understanding the various definitions and focusing on permissive conduct.

NY  VTL 1225C(1)(c) defines Use of a cell phone, which is defined as “holding  a mobile telephone to, or in the immediate proximity of the user’s ear.” Further,  the law creates a rebuttable presumption that if the operation held a mobile  phone to or in  the  immediate  proximity of his  or her ear, the operator is presumed to be engaged in a call, which can be  rebutted by evidence tending to show that the operator was not engaged in  a call. NY VTL 1225C(2)(b)

Immediate  proximity of the ear is defined under NY VTL 1225C(1)(g) as “that  distance  as  permits  the operator  of  a mobile telephone  to hear telecommunications transmitted over such mobile telephone, but shall  not require physical contact with  such operator's ear.”

Further,  New York VTL 1225C(1)(f) defines “engaged in a call” as 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.”

NY VTL  1225C(1)(d) defines a hand held mobile phone as “a  mobile telephone with which a user engages in a call using at least one hand.” 

New York VTL 1225C(1)(e) defines a hands free mobile phone as “a mobile telephone  that has  an  internal  feature  or  function,   or  that  is equipped with an attachment or addition, whether or not permanently  part of  such  mobile telephone,  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.”

What it all means

The best way to distill  down the defenses to a NY cell phone violation is to utilize the definitions  and exceptions to the statute to define what a New York operator can and cannot  do on a cell phone to make a call while operating a vehicle on a New York  highway:

Permissible

Impermissible

A  New York operator can operate a cell phone on a NY highway while the  vehicle is not in motion stuck in traffic, at a traffic light, at a  stop sign, or otherwise not in motion

Holding a  cell phone at or near your ear while engaged in a call when the vehicle  is in motion

Use  a cell phone to engage in a call while the vehicle is in motion so long  as you are not holding the cell phone in your hand

Holding the  cell phone while you are talking into or listening to it while the vehicle  is in motion

Hold  a cell phone while the vehicle is in motion for the limited purpose  of activating or deactivating a call

Holding the  cell phone to dial a number or make a phone call while the vehicle is  in motion

Even if you believe that  you are “guilty” it is still worth retaining our New York cell phone defense  lawyers to defend your New York cell phone violation charge. Our NY cell phone  defense firm is so confident that we will get the points reduced or eliminated  that we give a money back guarantee to do so. Our New York cell phone defense  attorneys can appear anywhere in the state of New York to fight your New York  cell phone ticket and charges. In addition our cell phone defense lawyers  go to the New York court for you, so when you retain our NY cell phone defense  attorneys you never have to lose time from work to go to court or even come  to our office we do everything for you.

Our NY cell phone ticket  defense lawyers put you in a nothing to lose, everything to gain position.  Call our law firm right now for a no cost, no obligation phone consultation.

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