Effective May 31, 2013 any New York State violation for using a portable electronic mobile device to send or receive a text message, image, e-mail, or any electronic data, or to compose, read or save a message while operating a motor vehicle carries with it a 5 point accrual. In addition, a conviction carries a large fine as well as insurance premium increase, and is now a suspendable offense if the operator has junior or probationary use privileges. This clearly makes New York State the toughest state in the nation for texting while driving.
A conviction for texting while driving in New York State is now the same as a conviction for the 5 point charge of reckless driving and passing a stopped school bus. Moreover, it is now worse than being convicted of malfunctioning brakes and following too close. New York State considers texting while driving more egregious than speeding up to 20 MPH over the limit, failure to restrain a minor, and violation of a railroad crossing.
The tougher penalties were motivated by the state of New York as statistics have showed that texting while driving is a growing trend. According to the NYS DMV while alcohol related accidents have decreased by 18% between 2005 – 2011, texting while driving accidents have increased by 143%. In 2011 New York State Department of Motor Vehicles records indicated that there were 25,165 fatal and personal injury accidents caused by texting and distracted drivers, compared to only 4,628 alcohol related fatal and personal injury accidents. Further, despite the fact that the points and penalties increased from 0 points when the law was first enacted to 2 points, then to 3 points in 2010, this has not deterred texting use, as between 2011 and 2012 there has been a 234% increase in the number of tickets issued for texting while driving in New York State.
There are two statutes that prohibit the use of cell phones while operating a vehicle in New York State. NY VTL § 1225-C Prohibits using a cell phone to engage in a call. NY VTL § 1225-D prohibits using a cell phone to send or receive text messages or electronic data.
The prohibited conduct:
NY VTL § 1225D(1) simply states that “no person shall operate a motor vehicle while using any portable electronic device 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 (unlike for making a call, it does not have to be only on a public highway)
- While using a portable electronic device
- While the vehicle is in motion
Defending a New York State texting while driving ticket
Consequently, if you were texting while stationary in a traffic jam or at a traffic light the ticket would be invalid. However what does it mean to “use” a portable electronic device? What does the statute define as a portable electronic device? How to defend a New York State texting ticket turns on having an advanced understanding of the definitions and prohibitions of the NY texting while driving statute.
NY VTL § 1225D(2)(a) defines Portable electronic device as “any hand-held mobile telephone…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, or any other electronic device when used to input, write, send, receive, or read text for present or future communication.”
NY VTL § 1225D(2)(b) defines use of a portable electronic device as “holding a portable electronic device while viewing, taking or transmitting images, playing games, or, for the purpose of present or future communication: performing a command or request to access a world wide web page, composing, sending, reading, viewing, accessing, browsing, transmitting, saving or retrieving e-mail, text messages, instant messages, or other electronic data.”
Under the NY texting while driving prohibition, the evidence does not have to literally show that you were doing one of the above prohibited types of conduct. Rather, all that has to be proven at trial is that the motorist held a portable electronic device in a “conspicuous manner.” Upon such a showing, it is presumed that the motorist was using the device, which can be rebutted at trial by evidence showing that the operator was not using the device within the meaning of the law. See, NY VTL § 1225D(4).
What it all means
In a nutshell, The New York anti-texting statute does not strictly prohibit texting while driving, rather, it prohibits holding a portable electronic device while using it. Further, you are allowed to have a portable electronic device in your hand while driving, you just cannot be texting with it, reading it, or doing any of the other prohibited acts. The law does not prohibit typing into a GPS mounted on your vehicle, or using your PED while not holding it. It merely prohibits holding the device and using it while operating a vehicle.
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