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. 

The Statutes

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.  

What our lawyers and attorneys can do for you

When you retain our NY  texting defense lawyers, we do everything for you. Our New York texting defense  attorneys go to court for you so you never have to lose time from school or  work; our NY texting while driving defense firm can represent you anywhere  in New York State; our attorneys are so confident that we can get your NY  texting ticket dismissed or reduced we give you a money back guarantee to  do so.

Our driving while texting  defense law office puts you in a position whereby you have nothing to lose  and everything to gain. Call us now for a no cost, no obligation phone consultation.