Vehicle and Traffic Law Section 1225-c, which initially became effective in 2001, prohibits individuals from operating a motor vehicle while using a mobile telephone to engage in a call while the vehicle is in motion. The law provides specific definitions including that “using” refers to the individual holding the phone to or near the user’s ear. “Engaging in a call” refers to talking into or listening on the device, but does not include holding the phone to “activate, deactivate or initiate a function of” the phone. This law then further provides a presumption that a driver holding the phone to or in the “immediate proximity” of his/her ear while the vehicle is in motion is in fact engaging in a call. The motorist has the opportunity then to defend against this presumption.
There are also specific exceptions to this rule which include use of the phone for the sole purpose of emergency communications with a 911 operator, hospital, physician’s office, ambulance or fire company or the police. Other exceptions pertain to operators of other authorized emergency vehicles while using the phone in performance of their official duties.
Vehicle and Traffic Law Section 1225-d applies to portable electronic devices which include mobile phones, PDA’s, laptop computers, pagers and even electronic games. Motorists are not permitted to use these devices while operating a moving vehicle. “Using” is defined to include holding the 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. There is a similar presumption that an individual holding a device in a “conspicuous manner” is using the device which again may be defended against by evidence that the device is not being “used” as defined. There are also similar exceptions for emergency situations as with Section 1225-c.
Recent amendments applying to these statutes allow a police officer to stop a vehicle when one of these offenses has been observed. This makes it a “primary offense” where in the past it was a secondary offense meaning that the officer would have had to have another basis to stop the vehicle and could only then impose this charge secondary to that other offense. Another change is that three (3) points apply to convictions of these tickets which are also punishable by a fine of up to $150.00 plus mandatory New York State surcharges.
Individuals ticketed with either of these two offenses need to pay more attention to them then they had in the past as a result of the points that apply. There are specific definitions, as well as exceptions that apply in the law which also make consulting with an attorney a wise choice.
Of course, the primary goal of these sections and their recently enacted strengthening amendments are to promote safety as there has been an increasing recognition of the dangers of distracted driving. The New York State Department of Motor Vehicle’s website has an impactful advertisement where it depicts a young boy with the phrase ”You tell his mother that you only looked down for a second”. Accidents that result from distracted driving are truly tragic as they rarely involve any malicious intent on the part of the driver who may otherwise be a good person yet causes an injury or death nonetheless. Our society is becoming less tolerant of individuals who increase the risk of accident by distracted driving. Despite the temptations of this increasingly convenient technology, the best course of action is simply not to use it while driving.