Texting And Driving In New York (Finally) Made Illegal

Posted by Matthew Weiss on July 12, 2011  /   Posted in Traffic Tickets

You have to hand it to Governor Cuomo. In just a short time, he’s shown himself to be an extremely effective politician. Examples including getting the dysfunctional Albany legislature to pass a balanced budget, approve ethics reform and recognize same-sex marriages.

Well, starting today, Cuomo added another notch to his belt. In just over a month, he was able to push through an amendment that makes texting and driving a primary offense in New York. I was the first to point out the loophole in the old law back in October, 2009 and have written about the dangers of texting and driving in over a dozen posts. I am, therefore, openly welcome the new law.

Under the new, more restrictive law, the mere holding of any electronic device while driving is now unlawful. Previously, a motorist could be issued a traffic ticket for driving while texting if he or she was also committing a separate different moving violation.

The penalty for violating the newly-enacted distracted driver law is $150 and 3 points. The new law also increases from 2 to 3 points the penalty for violating New York’s cell phone law.

Congratulations Govenor Cuomo and New Yorkers. Enactment of this law is well overdue.

27 Comments

  1. Luz Pagan October 26, 2012 8:57 am Reply

    Hi Matthew,

    Thank you for all the comments previously posted it has been a great help. Now, I just received a ticket 5 days ago for “texting” in a red light. I certainly thought that it was not illegal. The officer approched to me and said. Do you know why you were stop? I answer: “For texting on a red light?” The Office said “Yes”. I was shocked because my interpretation of driving is the car is actually moving. My car was not. She said please do me a favor next time put your car in Park. Meaning if my car would have been in Park on the red light I would not have a ticket. Can I still argue this?

    • Matthew Weiss October 26, 2012 8:59 am Reply

      Luz,

      If you are in “Park” and on the side of the road, you should not be issued a ticket. However, if you are stopped in traffic, then it is a violation of NY’s anti-texting law.

      Matthew Weiss

  2. steve July 13, 2012 12:38 am Reply

    I was thinking about this (IMO ridiculous money-grab) law today while drving into Syracuse. I’ve got an iphone, and I do not talk or text while driving. I do listen to music on it, and use the GPS functionality on the phone. The phone sits on a cradle on my dash, and is in plain view of surrounding traffic. It occured to me that switching tracks on my iphone, or zooming in or out on my iphone’s GPS, was likely to get me a ticket. Are both of these acts technically illegal in NYS? Is using a standalone GPS, with no internet connectivity, illegal? I guess I can go back to my old Garmin unit, if it will save me the hassle and potential cost of a ticket. Thanks.

    • Matthew Weiss July 13, 2012 1:17 am Reply

      Steve,

      If a police officer sees you holding your iPhone while driving, there is a presumption that you were illegally using it. You can try to disprove it but, of course, this can often be difficult. My advise is to refrain from using it for any purpose while driving.

      Matthew Weiss

  3. Jason Bump April 14, 2012 6:09 pm Reply

    I was pulled over today in New York for pushing play on my ipod. The law does not say anything about mp3 players. Should I plead guilty or not guilty?

    • Matthew Weiss April 14, 2012 11:55 pm Reply

      Jason Bump,

      This law actually includes mp3 players within its definition. Nevertheless, you should plead not guilty especially if this ticket is not going to be heard in a Traffic Violations Bureau court. If you do, you likely can save points off your license.

      Matthew Weiss

  4. Joseph B April 12, 2012 5:43 pm Reply

    Quick question – Is it illegal to view a message on a mobile/hand held device while stopped at a red light?

    Joseph

  5. James T March 18, 2012 11:51 am Reply

    I was holding my cell phone case on my chest squeezing it with my left hand and my cell phone was in my console by the floor shifter and I was talking on speaker phone. The phone case has to be removed in order for me to snap the phone into the console. The officer pulled me over and gave me a summons for use of electronic device (cell phone) while driving. It doesn’t seem that I have a great chance of beating this because I recently received a cell phone summons and that is why I purchased the hands free console.

    • Matthew Weiss March 18, 2012 2:39 pm Reply

      James T,

      I agree. It doesn’t seem like you have much of a defense given that you were holding the phone while operating your car. However, many courts negotiate plea bargains so pleading not guilty might be the way to go for you. If your ticket was issued outside NYC, western Suffolk, Rochester and Buffalo, then you likely can plea bargain it down.

      Matthew Weiss

  6. Andrew Wheeler March 16, 2012 9:20 am Reply

    My wife and I need some help. Back in April, 2011 (Due Process?!) my wife was observed by an officer in Colonie, NY using her cell phone while at a stop light.

    Actually, she was switching albums on her mp3 player.

    Now, the new “can’t even hold an electronic device” law was not in effect at that time. The device was plugged into the car’s auxiliary input jack with a wire, and the car was at a stoplight at a complete stop, and she was not talking/conversing on the phone. She was using it as a stereo.

    She tried to tell the officer and said she could pull up her phone records and he wouldn’t let her finish her sentence, cut her off verbally, and handed her the ticket. Looks like somebody needs some ‘soft skills training’!

    Two questions:
    1. In the Bill of Rights, number 6, it talks about a “speedy trial”. Here we are a year later, and Monday March 19 2012 is just the Pre-Trial conference!! Not even the trial!

    2. On what date did the NYS law VTL 1225-C 02A (which is on the summons) change to say you can’t even hold your phone? They can’t slap her with that though – the ticket was issued BEFORE the new law took effect!

    I’m frustrated, and I know what they’re gonna try and do to make their $150 – they’ll try to say she can’t even hold an electronic device – it wasn’t even a law when ticket was issued!! Please help!

    • Matthew Weiss March 16, 2012 1:14 pm Reply

      Andrew,

      There is no right to a “speedy trial” for NY traffic tickets. This won’t help you.

      When your case is eventually scheduled, you likely can negotiate a result with 0 points.

      Good luck!

      Matthew Weiss

  7. stan January 12, 2012 3:14 pm Reply

    I have to report all “moving violations” to an employer. In November 2010 I got a violation of “improper use of cellphone”. I know there are no points but back in November of 2010 was the use of a cellphone considered a “moving violation” ? Is there a technical definition of moving violation? In the code I only find reference to “traffic infraction” and I cannot find a November 2010 version of N.Y. VAT. LAW § 1225-c : NY Code – Section 1225-C. to determine what the violation was determined

  8. tylor July 20, 2011 7:21 am Reply

    I highly recommend do not use texting while driving, it’ll highly reduces the chances of accident.

    Any Comments on that!!! LOL

  9. Jacob July 20, 2011 12:37 am Reply

    Hi,

    Is talking on speaker phone with a hand held cell phone, holding it in the front of the face, allowed by law?

    the statue defines “using” cell phones as “Using shall mean holding a mobile telephone to, or in the immediate proximity of, the user’s ear.” Although the law states in section G “Immediate proximity shall mean 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.” One can argue that Immediate proximity only means that the phone is not touching the ear but can be heard while close to the ear. but will exclude holding the phone in front of the face.

    Since if the intend of the legislators were to outlaw any use of hand held cell phones even from from the ear-on speaker phone they should have excluded the word “immediate proximity” and just state that any hand held phone conversation is prohibited.

    Please advice,
    Jacob

    • 888redlight July 20, 2011 7:31 am Reply

      Jacob,

      No. As you write, you cannot hold your cell phone in the “immediate proximity of your ear” and most judges will conclude that holding it in front of your face falls within this definition.

      Interestingly, if you engage in a call in the speaker mode while the phone is not being held (ex., you place it down on the console), arguably you are not violating the law.

      Matthew Weiss

  10. Ty Rogers July 18, 2011 11:53 am Reply

    Do you know if the new law prohibits use of mp3 players. I have seen conflicting reports. IMO if someone is merely pressing a button on an mp3 player to skip to the next song, how is it different than changing stations on a radio?

    • 888redlight July 18, 2011 12:05 pm Reply

      Ty,

      Under VTL 12225-d(2)(a) the term “Portable electronic device” is defined as “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.” It does NOT mention mp3 players and, therefore, does not prohibit their use (unless of course it also has computing capacity like an iTouch device). Of course, don’t be surprised if zealous police officers write you up with using an mp3 especially while the law is still new and police officers have not been fully educated.

      Thanks for submitting this question.

      Matthew Weiss

  11. Mitchell Jureckson July 17, 2011 4:47 pm Reply

    Define “TEXTING”
    I am an out-of-state driver (PA) familiar with New York’s laws against talking on a hand-held cell phone. Leaving Manhattan on Thursday, July 14th, I was given a traffic ticket at 4:30 in the afternoon while sitting in bumper-to-bumper traffic on the approach to the Holland Tunnel. I had just called my wife using the speaker phone system of my cell phone. The phone was on the center console of my car when I pressed the button to hang up. I was written up for “Texting on cell phone with Right Thumb”.
    I was not texting and my Verizon records clearly indicate that. Do I understand this law correctly – despite any signs posted or any other notice I will be fined $150.00 and penalized 3 points for using my speaker phone option? I never lifted the phone off the console or looked down at it.
    The way the patrolman was darting through the creeping rush-hour traffic peering into every driver’s window and handing out tickets I would think this was a big day for generating fine revenues in NYC.
    As far as I know merely pressing the “ON” or “OFF” button on a cell phone does not constitute texting anywhere else in America. If I owned a newer car, with my phone wired into the vehicle’s audio system, would I have gotten a ticket for texting when I turned the radio off or on?

    Disgruntled NYC visitor

    • 888redlight July 17, 2011 10:08 pm Reply

      Mitchell,

      It sounds like you got a “cheap” and possibly defensible. Fortunately, points from a NY conviction do NOT transfer to PA. Nevertheless, a conviction will be reported to PA and can be used against you by your auto insurance carrier.

      I recommend the following subdivisions in particuar: VTL 1225-c(2)(b) which states: “An operator of a motor vehicle who holds a mobile telephone to, or in the immediate proximity of his or her ear while such vehicle is in motion is presumed to be engaging in a call within the meaning of this section” and VTL 1225-d(4) which states: 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.

      Matthew Weiss

      §1225-c. Use of mobile telephones.

      1. For purposes of this section, the following terms shall mean:

      (a) “Mobile telephone” shall mean the device used by subscribers and other users of wireless telephone service to access such service.
      (b) “Wireless telephone service” shall mean two-way real time voice telecommunications service that is interconnected to a public switched telephone network and is provided by a commercial mobile radio service, as such term is defined by 47 C.F.R. S 20.3.
      (c) “Using” shall mean holding a mobile telephone to, or in the immediate proximity of, the user’s ear.
      (d) “Hand-held mobile telephone” shall mean a mobile telephone with which a user engages in a call using at least one hand.
      (e) “Hands-free mobile telephone” shall mean 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.
      (f) “Engage in a call” shall 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.
      (g) “Immediate proximity” shall mean 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.

      2. (a) Except as otherwise provided in this section, 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. (b) An operator of a motor vehicle who holds a mobile telephone to, or in the immediate proximity of his or her ear while such vehicle is in motion is presumed to be engaging in a call within the meaning of this section. The presumption established by this subdivision is rebuttable by evidence tending to show that the operator was not engaged in a call. (c) The provisions of this section shall not be construed as authorizing the seizure or forfeiture of a mobile telephone, unless otherwise provided by law.

      3. Subdivision two of this section shall not apply to (a) the use of a mobile telephone for the sole purpose of communicating with any of the following regarding an emergency situation: an emergency response operator; a hospital, physician’s office or health clinic; an ambulance company or corps; a fire department, district or company; or a police department, (b) any of the following persons while in the performance of their official duties: a police officer or peace officer; a member of a fire department, district or company; or the operator of an authorized emergency vehicle as defined in section one hundred one of this chapter, or (c) the use of a hands-free mobile telephone.

      4. A violation of subdivision two of this section shall be a traffic infraction and shall be punishable by a fine of up to one hundred dollars.

      §1225-d. Use of portable electronic devices.

      1. Except as otherwise provided in this section, no person shall operate a motor vehicle while using any portable electronic device while such vehicle is in motion.

      2. For the purposes of this section, the following terms shall have the following meanings:

      (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.

      (b) “Using” shall mean holding a portable electronic 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.

      3. Subdivision one of this section shall not apply to (a) the use of a portable electronic device for the sole purpose of communicating with any of the following regarding an emergency situation: an emergency response operator; a hospital; a physician’s office or health clinic; an ambulance company or corps; a fire department, district or company; or a police department, (b) any of the following persons while in the performance of their official duties: a police officer or peace officer; a member of a fire department, district or company; or the operator of an authorized emergency vehicle as defined in section one hundred one of this chapter.

      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.

      5. The provisions of this section shall not be construed as authorizing the seizure or forfeiture of a portable electronic device, unless otherwise provided by law.

      6. A violation of this section shall be a traffic infraction and shall be punishable by a fine of not more than one hundred fifty dollars.

  12. Richard Reibstein July 14, 2011 12:55 pm Reply

    Matthew,
    Your blog is the best, and you did great work for me that I could not have done myself, even though I too am a lawyer, but not in your field. My question is:
    What does “driving” mean in the new “no texting while driving” law? For example, when you are stopped at a red light and not moving, can you pick up your Blackberry (R) to see if you got a message? Kindly advise. Rich R.

    • 888redlight July 14, 2011 2:28 pm Reply

      Thanks for the kind words Richard.

      I am still waiting to read the new statute but my best guess is that “driving” means you are behind the wheel and the car is in drive. If you are pulled over on the side of the road and the car is in Park, you should be okay. On the other hand, if you are stopped at a red light, do NOT even pick up your phone or other device. The mere handling of such a device while operating a car creates a presumption of use.

      Matthew Weiss

  13. jeff July 14, 2011 12:54 pm Reply

    Is pulling to the side of the road and texting an offense??

    • 888redlight July 14, 2011 12:57 pm Reply

      Jeff,

      Great question. I haven’t see the actual law yet so I cannot answer for sure. However, my best guess is that you’ll be okay as long as you vehicle is in Park. I doubt officers will be issuing such tickets to anyone who is legally stopped in a parked position.

      Matthew Weiss

  14. Kathy Lombardo July 14, 2011 11:49 am Reply

    It’s great that Governor Cuomo has stepped up, but, is it really enough? Telling our teens “just don’t do it” is really not a solution. If it was, we wouldn’t have this texting epidemic and be losing precious lives everyday. My company – Text2go.org – provides on-demand texting, safely and legally. You call up one of our operators and provide the message and number, and we handle the texting.

    • 888redlight July 15, 2011 10:17 pm Reply

      Kathy,

      I checked our your website and your service sounds like it provides a simple and effective solution. Nicely done!

      Thanks for sharing it with me and my readers.

      Best,

      Matthew Weiss

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