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People v. Riexinger, 40 Misc.3d 623, 968 N.Y.S.2d 832, 2013 NY Slip Op 23196 (2013).
The trial occurred on the Town of Lockport, Niagara County on the 29th of May, 2013. The defendant was motorist Alyssa Riexinger, accused of cell phone use in violation of NY Vehicle & Traffic Law § 1225-d. The lone witness for the state was one Trooper Timothy Waild, who had been a New York State Trooper since 1987. The honorable Justice G. Tilney presided.
The State’s Case
Trooper Timothy Waild testified that on the evening of March 14, 2013, while on routine patrol, he was parked at the corner of Transit and Robinson Roads in the Town of Lockport observing traffic. He further testified that he observed Ms. Riexinger drive her car past him holding a cell phone. Waild testified that during the stop he spoke with Ms. Riexinger and she advised him she was checking the time. Waild testified that he charged Ms. Riexinger with one count of Vehicle and Traffic Law § 1225-d, and also identified Ms. Riexinger in the courtroom as the person using the cell phone.
The Defendant’s Case
Ms. Riexinger then took the stand on her own behalf. She testified that she was on a half-hour break from work and the vehicle’s clock was broken, so she checked her cell phone for the time. She was not texting or communicating on the cell phone.
Ms. Riexinger also submitted into evidence Exhibits, “A” and “B” proving demonstrably through documentary evidence that her cell phone had no activity either texting or phone calls for the date and time of the ticket. Although she had the cell phone in her hand, no communication was had.
The Statute& Law
Vehicle and Traffic Law § 1225-d
(a) `Portable electronic device’ shall mean any hand-held mobile telephone, as defined by subdivision one of section twelve hundred twenty-five-c of this article, personal digital assistant (PDA), handheld device with mobile data access, laptop computer, pager, broadband personal communication device, two-way messaging device, electronic game, or portable computing device.
4. 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 tending to show that the operator was not using the device within the meaning of this section.
Position of the Parties
The People maintain the presumption under Vehicle and Traffic Law § 1225-d (4) and defendant’s own testimony shows she was using a portable electronic device while the car was moving. Defendant asserts that she was not using her phone within the meaning of the law.
Verdict – NOT GUILTY
The evidence adduced was that it was clear Ms. Riexinger was only checking the time on the phone. Had the allegation been that Ms. Riexinger was talking on the phone Trooper Waild would have charged defendant under Vehicle and Traffic Law § 1225-c. Moreover Defendant’s exhibit B, unchallenged by the People, shows no texting was going on at the time of observation by Trooper Waild or at the arrest of the defendant.
Vehicle and Traffic Law § 1225-d applies not only to texting, but also to using a portable electronic device while driving for any other purpose, such as surfing the web or checking emails. Consequently, V & T Law § 1225-d (2) (a) and (b) hold that a “portable electronic device” is any hand-held mobile telephone and “using” that device while “viewing … images” is prohibited.
Inasmuch as Criminal statutes must be strictly construed, the prohibited action under Vehicle and Traffic Law § 1225-d does not encompass using a cell phone as a clock or watch. The court finds the defendant’s actions akin to taking a pocket watch out to view the time. Surely, the New York State Legislature did not intend to prohibit this kind of action when enacting Vehicle and Traffic Law § 1225-d.
Accordingly, the court found the defendant “Not Guilty” and dismissed the charge.
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