NY’s New Portable Electronic Device Law – VTL § 1225-d Analysis

Posted by Matthew Weiss on July 21, 2011  /   Posted in Traffic Tickets

Anyone found guilty of violating the new law prohibiting texting and driving will be assessed 3 points and a fine of up to $150. I recently had a chance to review the portable electronic device law and, overall, I am concerned about a floodgate of wrongly-issued tickets being handed out.

First off, keep in mind that, under VTL 1225-d, the mere holding of a device while driving gives rise to a presumption of use. Therefore, if a police officer sees you just holding or fidgeting with an electronic while you are behind the wheel, he can issue you a ticket and YOU will be responsible for proving that you were not using it (as opposed to the other way around).

Given this presumption of guilt, I envision many motorists who are holding an iPhone or Adroid being issued a ticket even though they may be legally using it to make or receive a telephone call. The word “use” in the new law intentionally omits talking or listening to phone calls (VTL 1225-c governs driving and using an electronic device as a phone, and authorizes using a “hands-free” mobile phone).

Therefore, I expect a rash of tickets being issued by officers who will not be bothered ascertaining what use the motorist was making for his or her device. In fact, I was just emailed yesterday by a motorist who was issued a VTL 1225-d ticket for texting. However, he merely pushed the speaker button on his cell phone to hear a call while it was legally sitting on his console.

Don’t be fooled by the lack of tickets being issued under the old texting and driving law. That law contained a major loophole (first identified by me in October 2009) which made it difficult to enforce. The new law fixes this issue and, in my opinion, will lead to rash of tickets.

Another issue to be concerned about is GPS devices. While some newspapers have written that GPS devices are omitted from the new law, they do come within the reach of VTL 1225-d as a “handheld device with mobile data access” or as a “portable computing device”. If it is built into your vehicle or affixed to the surface of your vehicle, however, it is not a “handheld” or “portable” device and exempt from this law.

Another issue is whether motorists can “check” their device while stopped at a red light. The new law prohibits using your electronic device while the car is “in motion”. I expect that most courts will interpret “in motion” to mean when the motorist is behind the wheel with the car in “Drive”. Therefore, stopping at a light is “in motion”. I highly recommend pulling over to a legal parking spot if you need to text or otherwise use an electronic device.

Finally, I expect motorist using legal mp3 devices to also be wrongly ticketed. 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, gaming or texting capacity like an iTouch device). Of course, don’t be surprised if zealous police officers write you up for using an mp3 especially while the law is still new and police officers have not been fully educated.

Below is the text for the revised law in New York prohibiting texting and driving.

§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.

210 Comments

  1. Jesse Hyde August 22, 2014 4:01 pm Reply

    Matthew,

    I just received this ticket today, looking through this comment section i am boned on fighting it. My question is if I have to report to a TVB can I get this fine reduced or since it is a TVB there is nothing i can do?

    • Matthew Weiss August 22, 2014 4:03 pm Reply

      Jesse Hyde,

      At the TVB, they do not reduce or plea bargain. If you plead not guilty, you will be given a hearing. At the hearing, the judge can only find you guilty or not guilty (nothing else). The fine is discretionary but likely you’ll be given the minimum (assuming you have a clean or relatively clean record).

      Matthew Weiss

  2. Matt August 20, 2014 10:52 pm Reply

    I received a ticket last week under VTL 1225-d while holding my phone in my hand while it was playing music (like an Ipod). The face of the phone was turned off, upside down, and facing away from me at all times and I was not accessing any data or shuffling through playlists. I was ticketed under the “presumption” that holding your phone means you are engaged in “Use”.

    From my understanding of the law this does not fall under the “Use” scenarios defined in section 3: it makes no mention of ‘listening’ to recorded audio (nor should it, it’s no more distracting than listening to the radio while operating a manual transmission!) I have phone records that show there were no calls, texts, or data being used for at least a half-hour before the stop.

    My question is: to me this seems like a slam-dunk case and I have already plead not-guility, but if I am offered a plea deal for a no-points fine, should I take it? Are judges typically receptive to hearing arguments against the “presumption of guilt” codified into laws like this? I want to fight it on principal, but the 5 points are such an oppressive penalty that it may not be worth the risk.

  3. Dolly August 19, 2014 3:18 pm Reply

    Hi Matt,

    Last wednesday I was issued 1225-D ticket for holding the cell phone in my hand while driving in NYC.
    I was only holding the device so I could hear the GPS clearly but wasn’t even looking at the device.
    Even when the officer came I had GPS on my cell phone screen and I infact told him that I was holding it to hear GPS. But he told me mear holding the device is an offence.
    Do you think I can fight this in court?
    I had no reason to use the cell phone, my parents were with me in the car and there is no way I would risk their life by using cell phone while driving. And since my dad was sitting on the passenger seat, even if there was an urgent need to use the phone I would have asked my dad to do that for me.

    Please let me know if there is any chance to fight this?

    Thank you
    Dolly

    • Matthew Weiss August 19, 2014 5:31 pm Reply

      Dolly,

      You should plead not guilty even thought there is a presumption of “use” when the police officer observes you holding an electronic device. Pleading not guilty is the only way to possibly obtain a more favorable outcome.

      Matthew Weiss

  4. Chris. August 8, 2014 1:27 pm Reply

    one hour ago, i was issued a violation ticket 1225-d, for the used of cell phone. To be honest, i was not using the phone but just have the phone in my hand on the steering wheel while i was driving and singing to a song by John Legend( all of me) As i would explain: I went to the corner store to buy a ticket, the # is stored in the phone therefore i used the phone to get the number but when i went back to the car , i still held the phone in my hand within one minutes from the store. The police notice the phone in my hand and as i was singing to the song presumed i was talking on the phone. What is mr best defense to prove not guilty. Thank you

    • Matthew Weiss August 8, 2014 5:20 pm Reply

      Chris,

      In New York, there is a presumption of use when the officer observes you driving a vehicle while holding your cell phone. This could be tough to overcome. Hopefully, therefore, you can negotiate this down to a less serious charge.

      Matthew Weiss

  5. Mike August 2, 2014 1:39 pm Reply

    I was given a 1225-D ticked on my MA license while driving to NY. Ironically, this was on my way to the DMV to replace my MA license with a NY license as I moved here recently. So the ticket is on my MA license, but I was using my wife’s car which is registered in NY. I have to answer to the ticket within a few days, will ignoring the ticket affect my new NY license? Also I was not aware of the law, I was simply looking at google maps to know the way to the DMV, because I never been there before. If I answer the ticket and plea not guilty, will the judge take this in consideration? Thank you!

    • Matthew Weiss August 2, 2014 2:15 pm Reply

      Mike,

      If you ignore the ticket, you will be suspended in NY and the suspension will be honored in MA. If you plead not guilty, you likely can negotiate this down to a less serious charge.

      Matthew Weiss

  6. Chris June 10, 2014 1:10 pm Reply

    I received a ticket for VTL 1225-D 01 “unauthorized use of a portable electronic device” in Manhattan. I was stopped at a red light and my phone was resting on my center console. My left hand was on the wheel and my right on the headrest of the passenger seat. The officer told me that he saw me look down at the phone and that such an act was a violation of NYS VTL. Aside from the fact that I was wearing dark sunglasses in a car with tinted windows and was approximately 30 feet away from the officer when he walked past my car and in fact was not looking down but out the window at the officer, is the act of looking down at a cell phone if it is not physically held in my hand a VTL infraction? I am trying to decide if it is worth fighting this ticket. Also, are there points assigned to this ticket or just a monetary penalty? Your advice is greatly appreciated.

    • Matthew Weiss June 10, 2014 11:32 pm Reply

      Chris,

      If you are not holding the cell phone, then you are not “using” it and therefore are not in violation of the law. Of course, you have to prove this at a trial or hearing. This ticket carries 5 NY points and roughly a $200 fine. I hope this info helps.

      Matthew Weiss

      • Chris June 11, 2014 2:54 pm Reply

        Thank you Matthew. Is this a moving violation such that insurance carriers are raising rates for these points? 5 pts is pretty steep, but I have a clean driving record otherwise and can eliminate 3 pts when I renew my defensive driver course. Thanks again.

  7. GerryH June 6, 2014 5:39 pm Reply

    Iwas stopped at a street light in Chataqua County and i checked my phone to see if anyone had called me while i was working. It was about 2 seconds i glanced at it. I was then pulled over and given a ticket for 1225D and when i told the Officer i was not using the phone he told rather angrily that all i had to do was hold it and i was in violation. I was not aware of this. Do you recommend pleading not guilty?

    • Matthew Weiss June 7, 2014 3:12 pm Reply

      GerryH,

      Technically, the officer is right. Stopped at a light is still considered “moving” for purposes of the cell phone law. With that said, we still recommend that you plead not guilty. If you do, you likely can negotiate this down to less points.

      Matthew Weiss

  8. Kayla May 29, 2014 10:14 am Reply

    Hi Matthew,

    Thanks so much for your insight into this–it’s been really helpful. I was recently (within 24 hrs) given a ticket for using a mobile device while operating a motor vehicle. I’d missed my exit coming home (I’m still new to NY–moved here in January) and was completely lost. When the officer pulled me over, I was holding my phone facing away from me on the steering wheel, listening to the directions. But, it was nighttime, so the light was still on.

    In your opinion, is this even worth going to court to explain in the hopes that they’ll issue me a fine without points? Or should I just plead guilty, take the fine/points and do a defensive driver course?

    Thanks,

    Kayla

    • Matthew Weiss May 29, 2014 5:54 pm Reply

      Kayla,

      If your case is returnable at a non-Traffic Violations Bureau Court, then I would plead not guilty. If you do, you likely can negotiate this down to a less serious charge. Good luck!

      Matthew Weiss

  9. Lisa March 18, 2014 1:22 pm Reply

    Hi Matthew,

    My vehicle is equipped with Bluetooth for mobile phone and I mistakenly used the word “speakers” instead of saying “Bluetooth”. Can I plead not guilty and prove to the judge by showing my car’s original sticker listing all the features and highlighting the “Bluetooth for cellphone” and the VIN listed on the sticker, car registration and the title all matches? Do I stand a chance to prove my case?

    Will appreciate your advise and prompt reply.

    Thanks,
    Lisa

    • Matthew Weiss March 18, 2014 5:44 pm Reply

      Lisa,

      You can certainly advance that defense. However, many judges are skeptical and very well may not believe that you were using your Bluetooth coupling. BTW, if this ticket is not answerable at the Traffic Violations Bureau, then you can likely negotiate this down to a less serious charge.

      Matthew Weiss

  10. Anna March 10, 2014 9:44 am Reply

    Hello Matthew,
    I’ve got a ticket on March 7 2014 while driving in Brooklyn with a record “use of portable electronic device operating a vehicle in motion”. I didn’t use anything while driving, not phone, not GPS, nothing. I did not use a blue tooth or a speaker at this moment. My phone was in my coat pocket all the time since I’ve got into the car. It is a completely wrong issued ticket. I told the police officer that the phone is all the time in my pocket and he said that I might put it just after I was stopped. It is very unfair and I feel unsafe because I have to prove I didn’t do anything wrong. Do I have any chances going fighting this ticket under the new law?
    Thanks!

    • Matthew Weiss March 10, 2014 11:53 am Reply

      Anna,

      As of June 1, 2013, cell phone ticket is a 5-point ticket that carries roughly a $150 fine. It also can adversely affect your insurance rates if you have any other convictions (or an accident) on your record within the last 36 months. Your defense sounds like it will hinge on credibility – that is, whether the judge believes you or the police officer. In our experience, this type of defense is very hard to win because most judge will favor a police officer’s version. I wish I could be the bearer of better news but wish you luck in fighting this case.

      Matthew Weiss

  11. Matt Dreyer March 6, 2014 5:21 pm Reply

    I received a 1225(d)1 ticket in Brooklyn about an hour ago. I was using my phone purely to look at a map which was already open/ use it as a GPS device while stuck in traffic. Officer who stopped me mistakenly thought I was texting, issued ticket anyway. The description/narrative reads “use of portable electronic device while in motion.” 1225(d)1 does seem to define viewing as use. I was planning to plead not-guilty and argue that I was not using it, but the ticket hasn’t posted to the DMv system yet, so I haven’t yet plead. Any thoughts?

    • Matthew Weiss March 6, 2014 5:38 pm Reply

      Matt,

      Your ticket will not “hit” the DMV’s online system for, at least, 10 days. Once you see it, then you can enter your plea. In terms of your defense. there is a presumption of use if a police officer observes you holding and viewing the screen constitutes “use” within the meaning of this statute. Specifically, VTL 1225-d(2)(b) defines “using” as “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.”

      With that said, you can still fight the ticket. There are many ways that possibly could lead to a dismissal.

      Matthew Weiss

  12. Mike January 20, 2014 2:00 pm Reply

    Hi Matt,

    I received a 1225-D in Brooklyn. In the ticket description it says “Cellphone to Right hand — Right ear.” Is this grounds to fight? 1225-D is regarding texting not talking. Should I argue for it to be dismissed with this discrepancy?

    Thanks

    Mike

    • Matthew Weiss January 20, 2014 3:18 pm Reply

      Mike,

      Vehicle and Traffic Law 1225-d actually prohibits using any electronic device while driving. It therefore covers texting as well illegal cell use (even though there is a separate cell phone call under VTL 1225-c). Therefore, this “discrepancy” will not help you beat this case.

      Matthew Weiss

  13. James October 22, 2013 8:44 pm Reply

    Dear Matthew,

    I got a ticket for using a mobile device (VTL 1225-D 01) while driving in suffolk county in the beginning of the summer. I have a pre trial conference tomorrow morning at 10am. I pleaded not-guilty because I was using my phones GPS to get me home from a new job I had just recently started. I usually put it on my center console area between the two front seats, but the phone had fell in between the cracks of my seat and and the center console as i was driving. I waited till I got to a red light to get the phone. I held the phone in my hand at the red light and saw that the GPS app had closed so before the red light turned green I was able to set the route back to my home and put it back on the center console. A cop saw me doing this at the light and pulled me over and gave me the ticket. I explained what happened to him and he said to plead non guilty. I understand that I probably wont be able to get the charged dropped, but pleaded non guilty to possible lower the fine and 5 points. I saw from earlier comment/answers that a VTL 1225 ticket fine in suffolk is 300-400! Is that only if a trial takes place in court and im found guilty or will it be less if i decide to pay the fine tomorrow at my conference. Thanks!

    • Matthew Weiss October 22, 2013 11:19 pm Reply

      James,

      You should plead not guilty to this cell phone ticket. This is the only way to possibly get this reduced to a less serious charge.

      And, yes, the fines are very high in this court.

      Good luck.

      Matthew Weiss

  14. DAVID A. September 18, 2013 12:09 pm Reply

    Dear Matthew,
    Thanks for your quick and kind responses! I hope you have a very successful business year and everyone stays safe on the road.
    David

  15. DAVID A. September 18, 2013 3:02 am Reply

    Dear Mr. Weiss,
    What if you can prove to the court that you have remorse for texting while driving by doing something to help drivers not text so much?

  16. Anonymous September 17, 2013 7:01 pm Reply

    Is anyone ever successful in fighting these?

  17. DAVID A. September 14, 2013 10:38 pm Reply

    Dear Matthew,
    I was moving apartments and driving a van. it was a horrendously crazy day. I got pulled over and received a ticket right neat times square by a cop. They asked me what happened I told them I was moving and usually don’t drive in the city. They gave me a ticket for improper cellphone usage and was given a ticket. The ticket carries 5 points. Please note, the van had no middle seat and the officers could see straight into the front that I was on the phone. I was so tired that day I don’t remember if I was driving or texting. Further, cell phone records would indicate what I was doing. Should I fight it? It was my first ticket in NYC for driving since about 4 years ago when I got a ticket for not having a seat belt in brooklyn, which I paid. I do have a speeding ticket in Texas, which was kind of dismissed if I remember correctly, because the car wasn’t owned by me or something along those lines. I don’t remember the details, but am 99% sure no points were issued. Please advise and G-D bless for your help!
    Regards,
    David A.

    • Matthew Weiss September 14, 2013 11:15 pm Reply

      David A,

      You should plead not guilty and fight this ticket. This is the only way to try and obtain a more favorable outcome. The Manhattan Traffic Violations Bureau is a difficult place to win but you have nothing to lose to fighting it.

      Matthew Weiss

  18. Jon September 12, 2013 3:14 pm Reply

    Hi Matt,

    I have a VTL 1225 ticket in Suffolk county. If the ticket is reduced to 0 points (parking ticket), how much would the fine be ?

  19. Anonymous September 10, 2013 11:42 am Reply

    hi matthew,

    today i was driving to work and got a ticket for using an electronic device while driving. this ticket is unfair because i was not using my ipod. this is what happened: before i start driving i always place my ipod on the passenger’s sit and set my ipod for suffle so i dont have to use it or change songs. when i stopped my ipod slipped from the sit and i grab it and placed it in my purse. at the moment an officer stopped me and told me he saw me operating my electronic device. i tried to explain this to the officer but he was rude and did not let me talk. he even saw my ipod in my purse. my question is, should i plead guilty or not guilty?

  20. Mike September 8, 2013 10:36 pm Reply

    Hello Matt,

    Thank you for your prompt answer. So lets say, I get the 2 points final offer from the clerk, so when I go to the conference, can the prosecutor reduce it to 0 points if I ask him to do so? Please let me know.

    • Matthew Weiss September 9, 2013 7:40 am Reply

      Mike,

      As I previously wrote, the prosecutor may offer you the same 2-point offer that you previously were made (or if you are lucky will offer you something better). You are still faced currently with a 5-point ticket (despite the prior offer).

      Good luck.

      Matthew Weiss

  21. Mike September 8, 2013 9:48 pm Reply

    Hello Matt,

    Thank you for your advice. When I went to the Hempstead Court to hand over my not guilty pleading ticket, the clerk offered me he would reduce the ticket from 5 points to 2 points. He also told me that if I accept this deal, he would arrange for the conference on that day.

    I did not take that deal and now my court date is in Oct. I was wondering when I go there in Oct, if the same situation happens again, can I ask him to reduce it to 0 points or the 2 points is the final offer? Also, what is a conference? Please let me know

    • Matthew Weiss September 8, 2013 10:00 pm Reply

      Mike,

      You likely can get the same offer at your next court date (and possibly even get a 0-point offer). A conference in this context refers to a meeting with the prosecutor to discuss resolution of your case.

      Matthew Weiss

  22. Sue Rera September 5, 2013 8:39 pm Reply

    Hi,

    My 20 year old was pulled over and ticketed by a NYS trooper for violating NYS V and T Law Section 1255D in Rockland County. He was turning into the parking lot where the GPS portion of the phone instructed him. The officer pulled him over in the parking lot. How should he plead? Is there any advantage to pleading guilty?
    Thank you,
    Sue

  23. Maria September 5, 2013 11:05 am Reply

    Hi Matthew

    I am a NJ driver with a NJ license who just received a 1225 D ticket for holding my GPS the ticket states ” improper use of electronic device”. Does NJ recognize this offense? And will I receive points on myy NJ license ?

    • Matthew Weiss September 5, 2013 10:10 pm Reply

      Maria,

      N.J.S.A. 39:5D-4 provides that New Jersey shall attach points to out of State offenses or violations of a substantially similar nature to moving violations in New Jersey. This statute appears on the N.J.S.A. Point Schedule. The Motor Vehicle Commission will add 2 points to your New Jersey Driving record if convicted of these out of state violations.

      Currently, New Jersey does not assess points for improper use of an electronic device and, therefore, no points from a NY conviction to this charge will transfer onto a NJ license.

      Matthew Weiss

  24. Chris September 5, 2013 1:37 am Reply

    Matthew! How right you ARE! This amendment of this very necessary law SUCKS. I was stopped Tues. by a a trooper, whom from a parked position some 50 plus feet away. Sitting in his car, at a 30 degree angle perpendicular to me, sees me holding something in my hand as I drove by at 30MPH, and tickets me. WHAT!!??? Walks up to me and asks for the usual LIc, reg, ins, etc. and I hear the words “I stopped you because you were using your phone.” I calmly responded, “I absolutely was not sir. I……” and he was gone! He didn’t want to listen to Jack I had to say. During the traffic stop my phone was no where in sight to the officer, and he didn’t even ask to see it. That floored me because I was indeed holding a rectangular black item in my hand as I drove by, my Fu!@#% wallet! If your going to write somebody a ticket for something…… wouldn’t you want to at least see the phone, if not for nothing more than piece of mind!? I mean after all if I was about to ticket a person of our society, and cost this person time and money. As well as possibly negatively affecting a relationship with that persons auto-insurance company for next few years. Hence costing the person $150.00 plus NY States cut, plus any insurance premium hikes. WTF??? Are you kidding me!?
    Sorry didn’t mean to carry on but I am a little heated!
    Anyway, the question…… My phone records will prove my innocents. Is that going to be enough!? I mean, I don’t want a parking ticket, or school, or any other offers out there. I want this completely thrown out!
    Will my phone record indicating my last phone call was at 2:17 pm (made from a gas station parking spot) and no text messages sent or received between 2:17pm and the time of my ticket at 2:26pm be enough? I bought something at that gas station hence the wallet in my hand as I drove by the officer. I hold on to things while I’m in my car, I always did. Now with all the other things in my day I worry about, and have to account for. Now I have to consciously beware of what I am frig-in holding in my hand doesn’t resemble a electronic device! Oh yeah!
    K…. I am done crying.
    Thank you in advance for any advice.
    Sincerely,
    Chris

    • Matthew Weiss September 5, 2013 7:52 am Reply

      Chris,

      Your phone records may not be enough. Often we’ve heard judges reply “How do we know that you didn’t have or use a different phone?” If you can get a 0-point deal, take it! These cases are hard to win.

      Matthew Weiss

  25. Katie August 21, 2013 9:16 am Reply

    Hi-

    I live in NYC and was recently driving my car back from MN (my car was stored in MN during my first year in the city and I have decided to try having the car with me in Brooklyn for the next 6 months as a trial- I still have a MN driver’s license). I was driving through Beacon, NY to pick up some friends of mine from the train station there and was using ‘Google Maps’ on my phone to find the station, as I have never been to Beacon before, nor have I even driven in New York before. I was going slowly on neighborhood side streets, as I was unfamiliar with the area, and glanced down at my phone to see where I needed to turn next. Then I see flashing lights in the rearview. Cop said he pulled me over for ‘texting and driving’. I explained to him that I was not texting, but was trying to find the train station and glanced down at the map on my phone. He said that using a portable electronic device in any form is against the law in NYC and I should know this from all the commercials on television and billboards on the roads. I explained to him that I do not own a television and have never driven my car in NY prior to this. The office was actually really nice, and advised me to plead ‘Not Guilty’ and appear in court. He said he would vouch for me that I was new to the area.

    As I said, I live in Brooklyn, am a full time student, and a trip up to Beacon to fight the ticket will cost me an entire day and at least $40 in transportation.

    The officer said that the ticket would be $85 with some services fees attached, but this is not indicated anywhere on the ticket itself.

    I am trying to figure out if it is better for me to plead not guilty and try to fight the ticket at Beacon County court, or plead guilty and write an explanation. Do you think there is a chance the charge could be lowered? I am 28 and my last moving violation was when I was a teen for speeding- clean record otherwise. I don’t want this to affect my insurance and that is why I am considering the not guilty plea. Also- I don’t want to end up slapped with a $150 fine when the officer said it would be $85.

    I would appreciate any advice you may have! Thank you!

    -Katie

    • Matthew Weiss August 21, 2013 10:39 pm Reply

      Katie,

      This ticket carries 5 points which is a lot. We therefore recommend that you fight this traffic ticket. If you do, you likely can negotiate it down to a less serious charge.

      Matthew Weiss

  26. Anonymous August 11, 2013 10:32 am Reply

    Mathew,

    My wife was pulled over this morning while stopped at red light on Canal street. The officer gave her summons for illegal use of an electronic device. My wife stated that it would have been difficult for her to using her phone, considering that it was in purse which was resting on the passenger seat. The officer had no response to that, other than to say that she saw her use it and that she can fight the ticket. Other than providing records that no calerect texts were made, do we have any other recourse other than the judge believing my wife over an officer who is clearly mistaken? Greatly appreciate your insight on this.

    Thanks,

    Josh

  27. Mike August 11, 2013 8:33 am Reply

    Hello If I did get a cellphone citation in Nassau county (Hempstead court house) and If I plead not guilty and have a conference call, would the prosecutor agree to reduce it to parking violation and a fine. This is my first time ever to get a ticket. Please let me know. Thank you.

  28. Markus August 8, 2013 11:29 pm Reply

    Hi Matthew,

    First off I would like to thank you for taking your time to answer all these questions, they’re a great source of information.

    Just as many others I’ve been pulled over for merely holding/looking at my phone.
    I was driving on the Interstate going north from Albany (ticket says Guilderland),
    I’m in the right hand lane driving according to the speedlimit because I DON’T want to get a ticket.
    Phone gives off a half-ring, my car has built in handsfree so normally it will display who was calling but because of the short time it didnt, so I look over, phone on passenger seat, tilt the phone 45 degrees so I can see it better and then look back up again… 3 seconds tops.

    As I look up, I see the state trooper in the outside lane catching me in the corner of his eye, he slams on the brakes, cross all three lanes between traffic and lights me up…
    He walks up to the passenger window and asked me what I was doing, told him exactly what happened, he walks away and return later with a 1225 D.

    The law is the law I guess, but 5 points and $150 fine for looking at your phone seems harch.

    Now, here’s my question… I’m from Michigan and although texting is illigal you’re allowed to touch your device and make 1-button phonecalls, a violation does not carry points in MI.

    Am I better off pleading guilty, pay the fines and move on or should I try and plead not guilty and work something out ?

    Many Thanks

    • Matthew Weiss August 9, 2013 7:44 am Reply

      Markus,

      Thanks for your kind remarks.

      Unless you drive in NY regularly (and/or have other NY convictions), then you should just plead guilty. While this ticket carries 5 points in NY, it will not transfer as ) points onto your MI license because MI does not assign points for this violation.

      Matthew Weiss

  29. Daniel August 8, 2013 10:47 pm Reply

    Hi Matt,
    For 1225c2a tickets, is there a way to reduce penalties/points in NYC? Perhaps plea bargain?

    Thanks,

    • Matthew Weiss August 8, 2013 10:48 pm Reply

      Daniel,

      Unfortunately, NYC traffic courts do NOT plea bargain. You either plead guilty or not guilty (and, if you plead not guilty, then you either win or lose at your hearing).

      Matthew Weiss

  30. R July 2, 2013 8:51 pm Reply

    I paid my fine I did not text I was only
    Holding my phone
    I will never travel roads where police are again
    Police r paid by texting tickets

    • Matthew Weiss July 6, 2013 9:05 am Reply

      R.

      You should know that there is a presumption of illegal use when a motorist merely holds an electronic device while driving. My advice is to place your phone, etc somewhere out of sight (glove compartment, console, etc) while driving. It is very easy for an officer to stand on a corner and “pick off” drivers as they are stopped for a light holding a device.

      Matthew Weiss

  31. Mien P May 15, 2013 6:54 pm Reply

    Hi Mathew,

    Just like many others who have asked questions about 1225D, unfortunately I was a victim as well when I stopped at a Traffic Light April 24th, 2013, around 6am. I dialed a number twice on my Phone which was connected via Bluetooth to my vehicle Phone Multimedia System, and the calls were not even answered so I did not speak to anyone even. As soon as the Light was Green and I passed the light I had an Officer followed me and issued me a ticket. He actually told me the ticket has no Points so I am surprised as I just learnt here that the Ticket has 3 Points. Even though he told me the ticket does not carry any point and I never knew it actually has points, I still pleaded not guilty and sent the Not Guilty plea, including a type-written explanation of what happened. The officer looked exhausted and even had the date on the Ticket wrong (April 23,2013). I have received a letter from DMV with the Ticket in it, and asking me to swear an affidavit that I will not be able to appear in court, may be because I had the written explanation included in my Not Guilty Plea. I am busy and won’t have time to go to court, so I am thinking if I have to get the Affidavit ready and then include my explanation, and also include pictures of my Vehicle Bluetooth Phone System as it is used to dial a number, and see if I have a case. I don’t have any points on my License and my License is a PA License. Do I have any chance? I appreciate any help. They said I have to respond in 20-days

    • Matthew Weiss May 15, 2013 7:09 pm Reply

      Mien,

      I’m sorry for your misfortune. You should plead not guilty. If you do, you likely can negotiate this down to a less serious NY charge. BTW, good news, points from a NY conviction will NOT transfer onto your PA license.

      Matthew Weiss

      • Mien P May 16, 2013 11:37 am Reply

        Mathew, thank you for the reply and advice.

        I just received another letter from DMV, they said it replaces the previous notices, and it specified a day in September 2013 for my hearing. The first notice asked me to swear an affidavit and then this new one is specifying a date for my hearing, does it mean i must go in person? I don’t have time to go in person for any hearing because of my work schedule. The following are my concerns now;

        (1) At this point where a day has been scheduled for hearing, can I still pay of the ticket without any penalty, since I don’t have time and the 3 Points don’t transfer to my PA License?

        (2) NY has 3 points for the Ticket but you stated in your reply that these points are not transferable to my PA License. So does that mean NY will keep a record of 3 Points against my License, but PA will not have any Points on record for my License?

        (3) Will vehicle Insurance Companies know of the 3 Points?

        Your advice is always appreciated. Thanks.

        • Matthew Weiss May 16, 2013 2:24 pm Reply

          Mien P,

          (1) At this point where a day has been scheduled for hearing, can I still pay of the ticket without any penalty, since I don’t have time and the 3 Points don’t transfer to my PA License? Yes, you can always plead guilty. If you want to do so, contact the court.

          (2) NY has 3 points for the Ticket but you stated in your reply that these points are not transferable to my PA License. So does that mean NY will keep a record of 3 Points against my License, but PA will not have any Points on record for my License? Yes, precisely.

          (3) Will vehicle Insurance Companies know of the 3 Points? Yes, a NY conviction can affect your insurance in PA.

          Matthew Weiss

          • Mien P May 16, 2013 2:42 pm

            Mathew, thanks a lot for the reply and answer to my questions. I will sure plead not guilty and go to court then since the 3 Points will affect my Insurance! I probably have to get a Lawyer involved at this point.

            Thanks and I appreciate your commitment to help clarify things for me.

  32. shan p May 9, 2013 11:47 pm Reply

    Hello Mr. Weiss,
    I too have a similar problem. I am a PA residence, and got pulled over immediately entering the city from the holland tunnel. I use my phone for music which was plugged into my tape player. Its one of those old tape to mp3 converters. I was not using my phone, rather it was in my right hand and we were stuck in traffic. The cop followed me, I saw him behind me and then pulled me over. On the ticket it says in violation of 1225d (with a 235 crossed out). I am not sure what that means. But the note says electronic device, cell phone, music. He asked to see my phone, when i turned it on, it has a music screen. He still gave me the ticket.

    Does this give me point on my license? I am going to fight it, but I am wondering how this is even illegal. I felt profiled, because the cop said, so many out of state residents are getting these tickets. Please let me know, I will update as well.

    • Matthew Weiss May 10, 2013 6:52 am Reply

      Shan P,

      In New York, i tis illegal to use an electronic device while driving. This ticket carries 3 points in NY (and a $150 fine for a first offense). It can transfer as points onto your out-of-state license but that depends on which state you are licensed.

      Matthew Weiss

  33. Cat May 9, 2013 11:20 am Reply

    Hi,

    I wrote to you last year and have continued to follow these posts as I find all your insights informative and worthwhile. Curiously, I think my cellphone ticket has disappeared. Have you ever heard of this happening? It was issued in Queens and I did go to court. The judge was leaning toward dismissing it but instead just waived the fine. I applied for the transcript to contest the ruling…that was over 6 months ago. No transcript ever came and neither did any additional communication.
    I went online and typed in the complaint # and my DL#. It came back saying there was nothing outstanding in relation to my DL. Do you have any idea what happened beyond the fact that I got lucky? Did someone dismiss it or did it just fall through the cracks?
    Thank you for helping all of us!
    Cat

  34. Mike G May 7, 2013 9:52 pm Reply

    I was pulled over today for 1225D in Suffolk Cty. I will be going to TVB. I was holding a device and the officer said I was talking to it since it was in front of me and I was speaking. However, I was not talking to the phone but rather my son in the back seat. I do not have any calls made or recieved, texts made or recieved nor any data sent or recieved at the time when I got pulled over. I can prove that with my phone bill. I was holding the device but not using it. The device was not on at that time. Also, it is an older iPhone device and does not have the voice recognition technology either. Since this is TVB and based on what I read on your article, I presume I am not looking good. I also got an expired registration ticket. I moved last July and never got a renewal notice and it just expired a few days ago. That one I expect to take on the chin, but I am worried about the additional points. I cannot find any info on how many additional points the registration ticket is. I think since it falls under “other” on all of the lists I found it will be 2 points. I just want to make sure I stay under 6. That Driver Responsibility Assessment fee is insult to injury and I would like to avoid it. While I am not happy with the situation and hope for the best, I am resigned to the worst outcome. It is TVB after all.

    • Matthew Weiss May 7, 2013 11:13 pm Reply

      Mike G,

      Good news! The Suffolk County TVB closed last March. Your case will be heard at the Suffolk County Traffic Violations & Parking Agency. At this new court, you WILL be able to plea bargain. My understanding is that you should be able to plea your case down to a 0-point ticket.

      Matthew Weiss

      • Mike G May 8, 2013 4:47 am Reply

        That’s the best news I’ve heard today. Hopefully I will be able to pull off the plea. Any insight to the registration ticket? Is that 2 points? Think I would be pushing it to pull off a plea bargain for that as well?

        • Matthew Weiss May 8, 2013 7:22 am Reply

          Mike,

          Yes, try to plea both tickets as a package. The registration ticket carries 0 points but you should still try and get it reduced to a lesser charges for insurance purposes.

          Matthew Weiss

          • Mike G May 8, 2013 11:34 am

            Are the rules of Suffolk County Traffic Violations and Parking Agency at all akin to TVB? I know you said I should be able to Plea bargain. Who will I be plea bargaining with? An attorney or the Police Officer? What about the rules of evidence? Is it “Clear and Reasonable” like TVB or the more stricter “Beyond a Reasonable Doubt” like the courts? Also, are they able to suspend the right to Discovery like TVB? While my strategy is to plea my way out of as much of this as I can, I do have the technical expertise to show that my device was not in operation at the time that I was cited. I will have wireless carrier bills showing data usage and I will operation logs from the device itself to admit as evidence. I am planning on preparing a defense on those grounds even though my preference to move on with a plea. I just want to be sure of the process. Thanks again. your site has been most helpful.

          • Matthew Weiss May 8, 2013 11:38 am

            Mike G,

            You will be able to plea bargain with a prosecutor (not a police officer). The rules of evidence are only applicable if you go to trial … but the standards is “beyond a reasonable doubt”.

            Good luck.

            Matthew Weiss

  35. Brian April 17, 2013 4:00 pm Reply

    I had the cell phone in my hand but was just listening to music and police knows it when he knocked on my window while at a red light the music was still playing when I took my headphones off I told him I’m listening to music and waiting on an important call which I had the headphones so I didn’t hold it up against my ear and get a cell phone ticket now I’m stuck with a 1225d and I was using my phone as a MP3 player but since it has texting capabilities I get a ticket? My my my how the law is written in favor more of revenue and not the law itself. What’s the best way to defend myself since the ticket was in NYC and there is no plea

    • Matthew Weiss April 17, 2013 10:17 pm Reply

      Brian,

      Because you were holding your cell phone and technically “using” it, it appears that you were in violation of VTL 1225-d. With that said, if you plead not guilty, you have nothing to lose by fighting it.

      Matthew Weiss

  36. John April 12, 2013 2:08 pm Reply

    Hello Matthew,
    With regards to one of your comments up top “Keep in mind that there is no plea bargaining in any of the New York City traffic courts.” I received a ticket recently in Manhattan for txting while driving, the officer saying I had both hands on my phone. Oddly enough, the window side he came up to he could clearly see I had my blue tooth in my ear and was on my phone talking, not texting. I pointed it out to him but he didn’t care. I understand the law now (and having the phone in my hand at all), but you mentioned no plea bargaining. What does that mean exactly? I have already plead not guilty and am awaiting a court date. Also, I am from NJ, not NY, so I am not sure that even if I am found guilty that the points would apply to my license. What are your thoughts sir?

    • Matthew Weiss April 12, 2013 2:43 pm Reply

      John,

      No plea bargaining means that there are no deals. If you plead not guilty, you get a hearing where you will either win or lose. If you lose, you’ll get 3 NY points but, because NJ does not currently award points from texting and driving, these NY points will NOT transfer onto your NJ license.

      Matthew Weiss

      • John April 12, 2013 2:56 pm Reply

        I see. Thanks Matt. So do I even stand a chance then in court, since I actually had the phone in my hand? Should I have just plead guilty since I have a NJ drivers’ license?

  37. Michael Guttman April 8, 2013 3:44 pm Reply

    I received a cell phone ticket looking down at my phone while stopped in traffic. After it was issued, I noticed that I mistakenly handed the officer registration for another vehicle that I own, but was not driving at the time. The color, make model is totally different and the vehicle listed on the tickect was in my wife’s posession in another county. Can I request a dismissal with a sworn affidavit from my wife?

    • Matthew Weiss April 8, 2013 11:11 pm Reply

      Michael Guttman,

      You can only obtain a dismissal if you plead not guilty and beat the ticket at trial. You cannot beat this ticket by just an affidavit from your wife.

      Matthew Weiss

  38. Bradley E Allen March 28, 2013 12:57 pm Reply

    Tell me why the Trooper told me that there were no points and a lower fine. Some break. The listening was done with all voice activation. Her beef was that the phone was near my ear. I was not talking to anyone at all, simply responding to the VM prompts. She was told this thus the so called “break”. As far as I knew, i can use the phone with a speakerphone. I did not realize I could get a ticket with 3 points attached just for holding my device. I can understand safety and such if I was weaving across lanes and such, but the point was is that was not the case and I was well aware of what was going on. I am a Ham Radio Operator and that makes me much more aware as I know I can use my radio if needed. next time, that is what I will be using. The ticket does not bother me so much as the statement of a break and what the ticket actually was and the points atteched. Yes, I was holding the device, but I was a risk to no one. Like I said, the trooper was more of a hazard than I was.

    • Matthew Weiss March 28, 2013 8:22 pm Reply

      Bradley E Allen,

      I cannot answer for why an officer said something. With that said, this wouldn’t be the first time that an officer gave a motorist false information (intentionally or mistakenly).

      Matthew Weiss

  39. Bradley E Allen March 27, 2013 10:37 pm Reply

    I was given a ticket by NYS Trooper which said I violated 1225D. Yes the unit was NEAR my ear as I can’t wear an earpiece as it bothers me while driving and it’s too noisy to hear anything on a speaker unit and the volume is low on the device. I do not use the phone much at all when in my vehicle, but I had it up to my ear to listen to my Voicemails as I was waiting for a call from my daughter to pick up my grandson or not. I can get to my VM with a voice dial. She said I was using the phone but I did explain to her I was NOT carrying on a conversation, just listening. She came back with the ticket and said and I quote” I gave you a break and made the ticket for use of equipment so there are no points to your license.” This is what I was told. I went on line and wanting to not have any furthur issues, i paid the $130, but it said 3 points. Elsewhere I see 2 points. I am not so happy that I pleaded guilty to this now as it will put 3 points on my clean license. I wish to rebuttle this plea, but not sure if I can or how. Why would she tell me one thing and I find out something else. By the way, I was not distracted at all, I knew what was in front and to the rear as well as the trooper riding along side of me distracted to see if SHE could see in my vehicle. She actually was more accident prone trying to peer in my window than I was listening to the messages.

    • Matthew Weiss March 27, 2013 10:42 pm Reply

      Bradley E Allen,

      Listening to your VM while driving is illegal in New York. Also, an 1225-d ticket now carries 3 points on your license. You can try to vacate your guilty plea but your chances for success vary depending on the court.

      Good luck!

      Matthew Weiss

  40. Far March 18, 2013 12:43 pm Reply

    I got 1225-D1 ticket yesterday. I was just holding my I-phone in my right hand to see the time. No texting and not making any calls. Should I plead not guilty? Or if I plead guilty who much is the fine and how many points I will get? Thanks.

    • Matthew Weiss March 18, 2013 12:46 pm Reply

      Far,

      A VTL 1225-D(1) ticket is for illegally using an electronic device while driving. It carries 3 points and roughly a $150 fine. You can fight it based on the facts you set forth but you will have to burden of proving that you were not “using” it within the meaning of the law. This statute creates a presumption of use if the police officer sees you holding the device while driving.

      Matthew Weiss

      • sharon M Fedida March 22, 2013 12:19 am Reply

        was just holding my android in my right hand to see the time
        for one sec . the officer said in ticket that i was holding it in chest level but i was not talking or texting ….i dont get this
        this is unfair … i spend more time changing station on my radio or looking for address on my in car GPS but i get a ticket for checking the time for one sec….what should i do

        • Matthew Weiss March 22, 2013 8:43 am Reply

          Sharon M. Fedida,

          The law is clear. The court will presume that you were “using” your Android based on the fact that you were observed holding it while driving. “Using” means 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. Arguably, you were holding your Android while viewing electronic data which comes within the above definition.

          With that said, you may be able to obtain a favorable result by fighting this 3-point ticket. It depends on a few variables including, most importantly, what court your case is located (TVB or not).

          Matthew Weiss

  41. Phil March 13, 2013 7:49 pm Reply

    so if I convicted for july 2012 and its 4 points and and I get convicted for 1225-d Ticket today I have 7 points , but does 4 drop off on FEB 14 when that Period is Over or do I still have 7 I don’t understand please help

    • Matthew Weiss March 13, 2013 8:38 pm Reply

      Phil,

      For DMV points purposes, it doesn’t matter when you’re convicted. Whenever you lose the case, DMV will measure 18-months from the date of offense and add up how many points you have during this 18-month period (actually, there are 2 18-months periods that DMV will measure … 18-months before the date of offense and 18 months after).

      Matthew Weiss

  42. Phil March 13, 2013 6:22 pm Reply

    I received 1225D1 summons today for holding my cell phone Holding It , My Question is I received two 2 point tickets back in july 2012 how does the point system work I don’t go to court till november 13 , do those points drop off feb 14 even if I get convicted of this ticket today how does it work Im gonna fight both

  43. Val March 12, 2013 12:05 pm Reply

    I received 1225D1 summons today for holding t-mobile wifi mobile hotspot device in my hand while driving, I turned it on for my kid to use her ipad on the back sit, and kept holding in my hand, now the device does look like a cell phone, so I got pulled over and were issued a summons, I cant talk, text, receive or make calls with this device. Can I beat this ticket in court?

    • Matthew Weiss March 12, 2013 3:01 pm Reply

      Interesting question. A hotspot device is like illegal to use while driving. VTL 1225-d(2)(a) defines “Portable electronic device” 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”. Arguably, your hotspot falls within this definition. With that said, you should still plead not guilty and see what you can work out with the prosecutor.

      Matthew Weiss

  44. Jason Lee March 9, 2013 1:49 pm Reply

    Mr. Weiss,

    I am extremely confused about the penalties of Violation 1225-D. Everyone on this page says it is $150 and 3 points. However, I received one today in Chinatown and the officer drew a line on the back “Cell Phone —– $130″. She also said there are no points? Was she lying to get out of me to plead not guilty and go to court. Honestly, if it is just a fine, I’ll pay it. But with points, that is another issue.

    Side note, will it affect my dad’s insurance? I was driving but the car is under my dad’s name along with the registration. Thanks in advance!

    • Matthew Weiss March 9, 2013 1:59 pm Reply

      Jason Lee,

      A VTL 1225-d ticket does carry points. The police officer may have been mis-informed or, perhaps, untruthful. Either way, it carries 3 points. A conviction to this ticket will NOT affect your father’s insurance unless you (or other drivers on his policy) have an accident or other convictions within the last 36 months.

      Matthew Weiss

      • Jason Lee March 9, 2013 2:15 pm Reply

        Thank you for the quick response. 3 points is a lot and I will have to plead Not Guilty. Will I have to hire a lawyer for this? I did not think it was this serious! I was just holding a phone to switch to a different song. My headphones were in and everything! I don’t understand the point of underlining $130 on the back if it isn’t even the same violation!

        • Matthew Weiss March 9, 2013 3:19 pm Reply

          Jason,

          It is a personal decision wether you want to hire a New York traffic lawyer. In New York City, however, you have a much better chance with an experienced New York traffic lawyer on your side. Keep in mind that the legal fee will likely exceed the $130 fine for this ticket. Therefore, if you have an otherwise clean record, then you may not want to spend the extra money (i.e., fight it yourself).

          Matthew Weiss

          • Jason Lee March 9, 2013 3:45 pm

            It is so frustrating to decide if I should just pay the fine and be done with it or fight it if it has potential points on my license. If I do pay the $130, will I get mail saying I still owe $20 (for a $150 total) and have 3 points on my license? Or will I just be left alone with $130 less in my pocket? Thank you for your responses by the way!

          • Matthew Weiss March 9, 2013 5:46 pm

            Jason Lee,

            If you plead guilty using the DMV Online System, you’ll know the precise fine. I therefore recommend using it.

            Matthew Weiss

  45. Matthew Weiss March 4, 2013 12:39 pm Reply

    Jennifer,

    You can request a supporting deposition. However, the arguments that you set forth are not (in my opinion) strong. You should try and plea bargain this case down to a 0-point ticket.

    Matthew Weiss

    • Jennifer March 4, 2013 2:10 pm Reply

      Hi Matthew,
      Thanks a lot for your reply! Does that mean I should mail the ticket back pleaing not guilty and then plea bargain when appearing in court? or should I plea guilty and explain in the space provided on the ticket?
      Thanks again!

  46. Fares March 2, 2013 3:00 pm Reply

    Mr. Weiss,

    Is it enough to beat one of these tickets (using a portable electronic device while operating a mv) by showing that no calls were made or taken and no text messages were sent or recieved? I know that you can do more on a smartphone then what was mentioned like read an e-mail or browse the internet but those would be near impossible to prove that they weren’t done? Thanks.

    • Matthew Weiss March 2, 2013 10:28 pm Reply

      Fares,

      This should be enough but many judges are skeptical about such claims. They question whether you have another cell phone or (as you write) that you were illegally using your device for a different reason such as texting.

      Matthew Weiss

  47. DRW February 13, 2013 11:21 am Reply

    Matthew,

    I was recently cited for “use” of a cell phone – not sure of specific charge. However, when I attempted to explain to the officer it was my CGM (continuous glucose monitor) he wanted NO part of what I was telling him. I have been a Type I Diabetic since the age of 10, and have never had an issue looking at my CGM while driving. It has no internet connection, however, it does supply data on my glucose level. Would this device role up under this law, even though it has no internet data, cannot text, nor make calls from the device? I would be willing to provide records from my wireless company that would clearly show no calls, text or data being used during my driving.

    Thanks!!!

    • Matthew Weiss February 13, 2013 2:58 pm Reply

      DRW,

      Under VTL 1225-d(2)(A), 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. It does not seem that your CGM falls within this definition and, therefore, I recommend that your fight this traffic ticket.

      Good luck!

      Matthew Weiss

  48. Crystal M January 9, 2013 1:31 am Reply

    Alright just got issued one these tickets for using my GPS on my phone, pretty upset at the fact that not only did the officer come to my window saying I was texting but then kept trying to fight with me when I said I wasn’t, now after reading the law I see why he didn’t want to look at my phone. Anyway my question is if I have an in vehicle mount for my phone and I am using my GPS or listening to my ipod or (extreme and some what outlandish example) texting while driving I wouldn’t get a ticket?
    Under this law it does CLEARLY define that you must me holding the device to be issued a ticket. Could I have really saved myself by spending $12 at walmart!?

    • Matthew Weiss January 9, 2013 8:43 am Reply

      Crystal M,

      I sorry for your misfortune. It’s always upsetting receiving a traffic ticket.

      Under the law, it is illegal to “use” an electronic device while driving a car that is in motion. “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.” There is also a presumption of use if you are seen holding the device.

      So the answer is “yes”. You are much safer to have sometime of mount for your GPS as, in such a case, you are not “holding” it.

      Matthew Weiss

  49. Pete January 4, 2013 2:36 pm Reply

    I am a medical resident for the DVA. i was pulled over while fully stopped at a red traffic light and gave me a ticket for “OPERATING A MOTOR VEHICLE WHILE
    USING A PORTABLE ELECTRONIC DEVICE”. My phone made a sound and i picked it up to look at it because i’m an on-call medical resident and can get pages/calls at any time. I tried to explain to the officer that i’m on-call and had to check to see if this was a medical emergency, but he pretty much just walked away and came back with a ticket. when he first appraoched me, he said “you were looking down at something and i cannot give you the benefit of the doubt that you weren’t looking at your phone because you are holding it now”. This was in NYC. Could i argue and plead not-guilty by using the excemption: “When operating an authorized emergency vehicle in the performance of official duty” ?

  50. Joe K January 2, 2013 8:31 pm Reply

    I am very confused by this law, as it applies to mp3 players. Over at this article http://www.nytrafficticket.com/blog/index.php/2011/07/12/texting-and-driving-in-new-york-finally-made-illegal/ there is a comment by Matthew Weiss which states that mp3 players are included in this law. Yet in the article I am currently commenting in, the same person is saying the opposite?

    I received a ticket for this today after openly stating that I was skipping around songs on my ipod (classic, no internet capabilities or anything fancy at all). I had no idea using radio controls was something I could be ticketed for. I know how courts let everyone plead not guilty so they can just get their easy “parking ticket” money, but I would really like to know if it is in FACT legal or illegal to use an ipod.

    • Matthew Weiss January 3, 2013 3:25 pm Reply

      Joe K,

      I can’t comment about advise given by others. I can tell you unequivocally that mp3 players are covered by the law.

      Vehicle and Traffic Law §1225-d. defines a “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. An mp3 is a “portable computing device”.

      Matthew Weiss

  51. Kosta December 6, 2012 12:33 am Reply

    Hi Matthew,

    Got a NYS V and T Law violation 1225D with a description, operating motor vehicle while using portable electronic device- GPS on phone. I have an iPhone 5 where Siri actually talks you thru the directions. Now I did have the phone in my hand moving the position of it to the cup holder. To add to my story, I’m a CA driver license holder & resident so the likelihood of me making it back to contest this ticket is zero… I’ve been told it’s probably best if I plead guilty and pay the fine. Being I’m out if state, how would the points impact me a do you have any suggestions/ thoughts/ views on me fighting this ridiculous ticket.

    Thanks in advance!
    K

    • Matthew Weiss December 6, 2012 7:58 am Reply

      Kosta,

      A NY conviction will transfer onto you NY license. You’ll get 3 points in NY and CA will treat such a conviction as if was issued in CA (i.e., you’ll receive the same consequences on your license as if it occurred there). In terms of fighting it, it is illegal to use a cell phone while driving and there’s a presumption of use when the officer sees it in your hand. You can still fight this ticket but, in New York City, these tickets are relatively difficult to beat. If you want to fight it, you can retain a NY traffic lawyer to appear for you.

      Matthew Weiss

  52. Eli December 3, 2012 9:23 pm Reply

    Hi Matthew,

    I just received a ticket in Brooklyn for improper use of an electronic device while driving (1225-D-b). The officer pulled me over while I was sitting at a red light. I had been talking on my bluetooth previously and while at the red light was dialing another number. I tried explaining that I was not operating the vehicle at the time as I was at a complete stop, but he said I passed him on a different block while operating the device. The only issue was, I wasn’t driving on the block he stated I had passed him on. I assume there’s no way I can prove that he said that or that I was in fact not on that block . Also, is there a time limit from when the officer sees an infraction taking place until they need to pull you over, or is it limitlees? It seems that he was giving me a ticket for something that had occurred at least a few blocks back. Any advice would be appreciated as this is really frustrating. It seems that the burden of proof is on the driver not the officer. I am a safe driver using a bluetooth and recieving a ticket in spite of that…..

    • Matthew Weiss December 4, 2012 12:53 pm Reply

      Eli,

      At your hearing, it will be your word against the officers unless you can somehow prove that he wrote the wrong street address. Can you? If so, that’s where I would concentrate your defense.

      Good luck!

      Matthew Weiss

  53. Joyce November 7, 2012 10:56 am Reply

    I am upset because I received a ticket for a operating a electronic device. I had a fire by my house and just received a call about it. The state cop pull me over and issued a operating a electronic device ticket. He never saw the phone once I pulled over. I never get a ticket for anything. My driving record is excellent until now. What can I try to do? I don’t want to accept that I am guilty because I have a speaker on the telephone. What will happen to me?

    • Matthew Weiss November 9, 2012 4:20 pm Reply

      Joyce,

      A speaker on the phone does not make your holding of a cell phone legal. To the contrary, there is a presumption of guilty if you merely hold such a device while driving. With that said, there may be other was to fight this ticket. If it was issued outside of NYC, Buffalo, Rochester or wester Suffolk you can fight it and likely plea it down to a less serious charge.

      Matthew Weiss

  54. Sue October 21, 2012 6:13 pm Reply

    Hi Matthew,
    I just got a ticket in Brooklyn under 1225c2a, and the note says I was “operating a mv while on a cellphone.” However, all I was doing was listening to my droid’s voice navigation app; as I told the officer, it had fallen off my lap and I was holding it in my hand because I was having trouble hearing it and I didn’t want to try to adjust the volume while I was driving. I even showed him that the navigation was engaged when he pulled me over. I have never before had a moving violation and I don’t have any idea what this will do to my insurance. Is this worth fighting? Do have have suggestions about the approach I should take?
    Thanks for your help.

    • Matthew Weiss October 21, 2012 9:04 pm Reply

      Sue,

      Because you were holding the device, you technically violated the electronic device law. You can still try and fight it, but it might prove hard for you to beat this ticket. Keep in mind that there is no plea bargaining in any of the New York City traffic courts.

      Matthew Weiss

  55. Monica October 11, 2012 11:11 am Reply

    Hello,
    Can you please tell me if the below information is true? I got a ticket 1225d (Oper MV while using a portable elec dev) in orleans county, NY.
    I did not receive any other tickets when i was pulled over. Do you think i can fight this? The officer said he pulled me over bc i was texting and driving. .

    “Specifically, I explained that a summons for violating New York Vehicle and Traffic Law §1225-D can only be issued if there is reasonable cause to believe the operator of the motor vehicle also committed a separate violation of the law. VTL 1225-D(6). The above means that you must commit a second, separate traffic offense in order to be charged with illegally texting and driving. So if an officer sees you text messaging and driving, he CANNOT charge you with a violation of Section 1225-D unless he also observes you committing another moving violation at the same time. Essentially, this allows motorists to legally text and drive (despite the new law) as long as they do not otherwise break the law.”

    • Matthew Weiss October 11, 2012 10:08 pm Reply

      Monica,

      You’ve cited old, over-ruled law. Texting and driving is now a primary offense in New York.

      With that said, you should plead not guilty. If you do, you likely can negotiate a reduction to a less serious charge.

      Matthew Weiss

  56. Andy Black September 22, 2012 6:04 pm Reply

    Yesterday my wife handed me my phone after concluding her conversation. I noticed she hadn’t pressed “end.” I pressed “end” on my iPhone and put the phone down and was immediately pulled over and ticketed. This hardly seems to fit the description of “using.” Really!?! Is this defendable?

    • Matthew Weiss September 22, 2012 8:48 pm Reply

      Andy Black,

      It’s a technical violation but arguably you violated the law by pressing “end”. In any event, I recommend that you plead not guilty and fight this ticket. This would be your only chance to try and avoid the points.

      Matthew Weiss

  57. Sam S September 17, 2012 8:18 pm Reply

    I got ticket for holding my gps while driving. I lost the mount for my gps and I had no idea where I was going. It was late at night and dark. Do you think I have a case? I had no other way of viewing my gps without holding it.

  58. Amber September 6, 2012 6:49 pm Reply

    I received a ticket for operating motor vehicle while using portable elec device. I wasn’t talking on it but had texted at a red light he must have seen me and pulled me over he asked “sobi kno why I pulls you over and I said because I was texting ?” he walked away came back with the ticket. I don’t kno what to plead and if I plead not guilty what do I say ?

    • Matthew Weiss September 6, 2012 10:33 pm Reply

      Amber,

      It is illegal to text while operating a vehicle. Nevertheless, you can try and fight this ticket. How you fight it depends on the court. In NYC, Buffalo, Rochester and parts of Suffolk County, you have to have a trial. Elsewhere in New York, you can likely negotiate a reduction to a less serious charge.

      Good luck.

      Matthew Weiss

  59. Carlos August 14, 2012 11:03 am Reply

    I’ve just returned from Traffic Court after pleading my case – not guilty of “operating an electrical device while driving” (1225-D). I’m from Florida and accordingly, my D/L, Insurance and Registration have all been issued by the State of Florida. I was accused of texting while driving and this couldn’t be farther from the truth. In fact, not only does my Verizon statement demonstrate that no phone calls or texts were received during the time/date in question, but my statement also shows that I do not use my phone in the mornings during my commute … at all.

    On the day I was wrongly accused of texting while driving, there was a terrible accident on the West Side Highway wherein a Forest Green Volkswagen had plowed underneath the back of what appeared to be an 18-wheeler. It was a terrible accident that occurred just in front of my vehicle. Everyone was completely stopped; some drivers had even shut off their cars due to the wait. My car was not “in motion” – not by definition and certainly not in the legal sense. I was not “in Drive”; my car was “in Neutral” as I drive a stick.

    When the Officer approached my car and asked me to pull over, I thought it was to be a witness and provide him with information regarding the accident. I complied and was prepared to explain what happened. When he asked me for the usual documents one provides just before receiving a ticket I asked him why he pulled me over. He never responded and went back to his car. When he returned he handed me a ticket as described above and walked away. I called him back to show him that what I had in my hand was gum and he continued walking. A clear ego trip if you ask me.

    In court today the Officer claimed that he saw me holding a black mobile device, touching the screen, et cetera. I don’t know how he could have possibly seen that much detail when my car was filthy from construction in my area and has reflective tinted windows. I explained to the Judge that what the Officer had seen me holding was a pack of gum – a small black box similar in appearance, shape and size to a traditional mobile phone. This was the truth and I brought a pack which was submitted into evidence. My cell phone was in my briefcase in the back seat of my car!

    The Officer also stated that my car was “zig-zagging slowly” and that there was traffic because of the accident. How did I zig-zag exactly if my car was stopped? I don’t understand. I don’t think the Judge listened to what the Officer had to say because it didn’t make any sense. Things just didn’t add up. I’m sure that Police Officers in New York are prepared for their appearances in court and know exactly what to say regardless of its verity … and the law shouldn’t tolerate that! We entrust these people to serve and protect us. Quotas shouldn’t dictate their actions toward us.

    Had I actually been using a mobile device, then how can the officer “presume” I was texting and not calling 9-1-1 to report the accident that had taken place before me, which is permissible under the law. The Officer confirmed in his testimony that an accident had indeed occurred. So then how can he and the Judge assume I was indeed texting? And this is what New York considers just? It’s simply not right. I appreciate what Governor Cuomo is trying to do, but this particular law and it’s absurdity borders on “cruel and unusual” if you ask me.

    I’m curious – doesn’t this law somehow infringe on our Constitutional right of “free speech”? I know it’s a stretch, but once you send something electronically, isn’t it also “de facto” published and considered protected? I didn’t use a mobile device while driving, but had I done so I would want to explore the issue to the fullest extent possible. I was found guilty which I honestly cannot understand; it’s as though our legal system is in regress. I will appeal the decision and wanted to know your thoughts. In addition, do you take cases such as mine?

    I look forward to hearing from you. Have a great day!

    • Matthew Weiss August 14, 2012 2:25 pm Reply

      Carlos,

      The presumption of use that occurs in New York when a motorist is merely holding an electronic device has not yet been challenged in court yet. My feelings, however, are that it would be upheld as it is reasonable (in my opinion) to require motorists to put away their devices while driving.

      You may an interesting “free speech” argument but there is an abundance of case law upholding reasonable restrictions on free speech.

      With that said, by all means, do not let me discourage you from appealing your conviction. Good luck!

      Matthew Weiss

      • Eric S September 4, 2012 8:32 am Reply

        I went to court to conference with the prosecutor with my hard copy of the VT1225c. I explained to the prosecutor that the law clearly states that the driver is allowed to touch the phone to activate hands free etc. I also showed my Sprint phone bill showing that I had not been engaged in a call at the time in question. He said there is no proof that my phone bill was for the phone I was traveling with. In other words maybe I had someone else’s phone…So much for the prosecution having the burden of proof. He said he would reduce the charge to parking on the sidewalk, no points no surcharge and $75 fine. I took the deal, rather than lose another work day’s pay.

        • Matthew Weiss September 4, 2012 10:41 am Reply

          Eric S,

          I know that you believe that you were issued the ticket improperly but, from a practical view point, this is actually an excellent result.

          Matthew Weiss

          • Eric S September 5, 2012 8:40 am

            Yes the paying a $75 fine was what some call ju$tice, a compromise, economically. Those interested in this law VT1225 should print it out and read it. It is being used incorrectly to gather revenue for the state.

          • Paige September 12, 2012 11:55 pm

            So i went to TVB court today not expecting to win. I didn’t, but the judge did waive the fine as I think he knew I wasn’t guilty! so he felt guilty. It wasn’t the fine I was concerned about though–it is the points. So while I was there someone told me I can appeal.
            I need to appeal the verdict and penalty,right? And they will send me a transcript as well? Are the odds of winning an appeal better or worse? I understand this doesn’t involve a court appearance so i will all hinge on the trasncript and anything additional I submit, correct?
            Thank you for your insight.
            Paige

          • Matthew Weiss September 13, 2012 12:02 am

            Paige,

            Your chances of winning an appeal are slim but please don’t let me discourage you. The appeal fee is $10 and the transcript deposit will be $50.

            Good luck!

            Matthew Weiss

  60. albert August 7, 2012 6:28 pm Reply

    So I got a ticket for Oper MV while using portable Elec device. Wasnt using but happen to be looking at the time. The officer made a typo on the year of my car. Can I fight this ticket to not get points or should I pay the ticket. This is the first ticket I have gotten in Upstate NY.

    • Matthew Weiss August 7, 2012 10:59 pm Reply

      Albert,

      You likelihood of obtaining a favorable outcome hinges on the court in which your case is to be heard. This ticket carries 3 points so we recommend that you fight it.

      Matthew Weiss

  61. Andrew July 16, 2012 4:43 pm Reply

    I was pulled over today by an NYPD officer in Queens for briefly looking at my navigation in my hand while stopped at a red light to see when my next turn was coming up. The officer was in an unmarked car next to me and pulled me over as soon as traffic started to move again. Mind you, my full ateention was on the road at that time. My job requires me to commute to different areas of NY and I use a gps on a daily basis for my business. He wrote on the ticket “GPS right hand.” I really see no difference between looking at an in-dash gps and a portable gps while stopped at a red light. I asked him why it is illegal and his answer was “it can’t be in your hand.” Based on the law as it is written today, is there any way to fight this or do I suck it up and pay the fine?

    • Matthew Weiss July 16, 2012 4:49 pm Reply

      Andrew,

      Hand-held devices come within the reach of VTL 1225-d as a “handheld device with mobile data access” or as a “portable computing device”. This ticket carries 3 points and roughly a $150 fine. Whether you fight this ticket is a personal decision. If you have other points, then my advice would be to definitely fight it.

      Matthew Weiss

      • Andrew July 16, 2012 4:59 pm Reply

        Matthew,
        This is only my first offense and have otherwise had a clean driving record with no other points on my license. Obviously you can’t make guarantees but could you give a ballpark probability that going to NYC traffic court could at least lead to a point reduction seeing as how this is my first offense and my intention wasn’t to break the spirit of the law, even though I suppose I technically broke it?
        Thanks

        • Matthew Weiss July 16, 2012 5:04 pm Reply

          Andrew,

          NYC traffic courts do NOT plea bargain (unlike most other courts in NYS). If you plead not guilty, you will be scheduled with a hearing date. At the hearing, the only two outcomes are guilty or not guilty.

          BTW, you intent is irrelevant for purposes of beating this traffic ticket. If you illegally used a portable electronic device, the court will find you guilty.

          Matthew Weiss

        • Cat July 16, 2012 6:59 pm Reply

          Andrew,
          I am in the same predicament and was also pulled over in Queens. The next thing you will find out is that the NYC system does not plea bargain. It’s all or nothing. So the question is, how likely are we to get our tickets dismissed. I drive all over NYC, LI and Westchester for my job and have a clean record. I don’t want to see 3 points on it, and I thought it was 2!

          • Matthew Weiss July 16, 2012 9:12 pm

            Cat,

            The odds are against you. You are more likely to lose than win. With that said, you have nothing to lose if you fight it (i.e., its the same 3 points and roughly the same fine).

            There, you may want to still fight it (or hire a NY traffic lawyer to help you).

            Matthew Weiss

  62. Rudy July 12, 2012 10:58 am Reply

    I just recieved a ticket. I was driving a railroad work vehicle and someone called me on the portable radio we use. I picked it up and told my boss I’d call them in 5 min and put in in the cup holder. A few min later a cop pulls me over and says he is writing me a cellphone ticket (1225-d) because he saw me on a cell phone 10 blocks ago from the other side of the road. How can I fight that? Hes going to have to lie at the trial and most definately will.

    • Matthew Weiss July 12, 2012 11:08 am Reply

      Randy,

      If you plead not guilty (and this ticket was not issued in NYC, western Suffolk, Buffalo or Rochester), you likely can negotiate this ticket down to a less serious charge.

      Matthew Weiss

  63. Christopher M Grant July 10, 2012 5:09 pm Reply

    I was given a ticket for this today and I wasn’t even holding a portable electronic device. I was looking at the package that a screwdriver I just bought came in.

  64. Victoria June 29, 2012 2:41 pm Reply

    I received a ticket 1225D Operating MV while using portable electronic device on I-87 in Woodbury, NY. At the time I was listening to nursing lectures on my MP3 player and the Officer passing me in the left lane saw the lit device unfortunately in my hand and naturally pulled me over and issued this ticket. I live in Vermont and it would not be easy making it down to Woodbury, NY for court. Is there a way to fight this without physically being present in court? Or if I plead guilty and have no previous history of driving offenses how will 3 points effect my license and car insurance?

    Thank you Matthew.

    • Matthew Weiss June 29, 2012 10:04 pm Reply

      Victoria,

      If you fight this ticket, you likely can get the points reduced. If you cannot make it back to NY, then you can retain a NY traffic ticket lawyer to appear for you.

      I hope this helps you decide how to handle this ticket.

      MattHew Weiss

  65. Jessy June 25, 2012 6:15 pm Reply

    I just got a ticket for using my cell phone n driving. What should I plead. N what will happen if I plead guilty.

    • Matthew Weiss June 25, 2012 6:18 pm Reply

      Jessy,

      You should plead not guilty to try and avoid the points and possibly fine.

      Matthew Weiss

      • Jessy June 25, 2012 6:21 pm Reply

        Will I be having a court case. The problem is I am trying to avoid any court case. If i plead guilty what should I said !

        • Matthew Weiss June 25, 2012 6:27 pm Reply

          Jessy,

          If you plead not guilty, then you’ll be given a court date. What you do on that court dates depends on whether your ticket was issued in a Traffic Violations Bureau court (or not).

          Call us to discuss.

          Matthew Weiss
          212-683-7373

  66. Eric S June 25, 2012 2:43 pm Reply

    I got ticketed for holding the phone up to my chest. My wife had just Nextel Direct Connected me. I was attempting to activate the reply button which the law does make mention of. The device was in speakerphone mode and my bill shows no call for that date and time. I believe the law is misinterpreted and if taken word by word literally I might have a case. How do I play this as my conference is coming up soon.

    • Matthew Weiss June 25, 2012 3:33 pm Reply

      Eric S,

      I would refrain from making this argument until the prosecutor makes his or her offer. If you get a 0-point offer, then take it and run. Otherwise, you can then argue about the technicality.

      Good luck!

      Matthew Weiss

  67. Greg Fischer June 8, 2012 11:31 pm Reply

    Any GPS test cases yet?

  68. Joy June 8, 2012 8:16 am Reply

    My husband was given a ticket 1225D use of electronic device all while he was on speaker phone with the phone next to him in the cup holder. I was actually on the other end and we had been speaking for at least 5 minutes. He never held the phone only touched the answer button which at the time the officer was no where near him yet 6cars ahead of him. When my husband was pulled over he asked what he was being pulled over for and the officer told him you are not aloud to a device and told my husband he needed to have both hands on the wheel. If you drive stick this is not possible and being he is use to this practice he had his hand on the gear shift next to him. Apparently this is not allowed while your lips are moving. Truly sad how NYC is so desperate for money that they can give out tickets for bull like this.
    The thing that gets me is the points and the fine but more the points should he fight this or should we bit the bullet since we all know that the officer is right all the time no matter what proof you bring or how ever many witnesses.

    • Matthew Weiss June 8, 2012 8:21 am Reply

      Joy,

      Sadly, it is very hard to beat a traffic ticket in New York City. In your husband’s case, he has a pretty good defense. Because he was not holding he device (and because presumably the officer did not see him operate the vehicle while holding the device), it is questionable whether a VTL 1225-d violation occurred.

      He has little to lose by fighting it but, of course, he’ll have to decide.

      Matthew Weiss

    • Joy June 8, 2012 8:24 am Reply

      Just a thought should it not be up to the DMV to notify us when laws change or stupid ones are added to steal money and add points to your license?

      • Matthew Weiss June 8, 2012 8:51 am Reply

        Joy,

        Actually, the enactment of the “Portable Electronic Device Law” was well-publicized in the newspapers, local news stations and even on electronic highway signs. Further, in my opinion, this is a very good law. Distracted driving is VERY dangerous and motorists need to be dissuaded from such conduct. With that said, I still think your husband has a pretty good defense given that he was seen holding the device.

        Matthew Weiss

  69. TJ June 1, 2012 11:33 pm Reply

    what if I have my mobile device mounted in my car so I don’t have to hold it. then I can’t receive a ticket right?

  70. Paige May 8, 2012 10:18 pm Reply

    Mr. Weiss,
    Thank you for all the advice. I was issued a ticket that must read 1225d1 (though it looks like 1229d1) by the NYC Traffic Violations Bureau, in Quns. I had a bluetooth on which was visible and I told the officer I was on the phone, on the bluetooth but was hanging up the call–which was true. But he wrote me this ticket and wrote in the narrative “electronic device while driving”.
    Is this ticket 3 points? And have I read correctly that the TVB will NOT peal bargain? And last, do you think I have a chance and it is therefore worth fighting?
    Oh,and the officer told me if I brought the bill showing I was on the phone it would be dismissed, though from what I read here that doesn’t sound correct…

    • Matthew Weiss May 9, 2012 8:38 am Reply

      Paige,

      Yes, this ticket carries 3 points and at the Traffic Violations Bureau (“TVB”) there is no plea bargaining.

      Everyone who fights a traffic ticket at the TVB has a chance to win but, of course, they are pretty difficult to win (especially without an experienced NY traffic ticket lawyer). There are unique rules and policies that make it difficult for someone new to the system to defend themselves. Look back just a few comments for a link to an article that I wrote that should help you better understand how the TVB works.

      Good luck!

      Matthew Weiss

  71. M Chan April 23, 2012 11:43 am Reply

    I was recently issued a ticket in NYC under 1225D ‘portable electronic device, use (vehicle in motion) both hands’.
    I was at a complete stop on a red and took a picture with my pda.
    Is there a point to plea not guilty or am I simply guilty because I viewed the image I took a picture of…while at a red light.

    • Matthew Weiss April 23, 2012 12:37 pm Reply

      M Chan,

      From what you describe, it sounds like you’re guilty. However, because the People have to prove its case against you (not the other way around), it is often fruitful to fight one’s tickets. We win plenty of tickets when motorists do not believe they have much of a chance.

      In some courts, you can plea bargain your case down to a less serious charge. In others, you have a chance to possibly beat it at trial.

      On the other hand, if you have any otherwise clean record, then you may not want to invest the time and/or money to fight this one as it is (along) not a very serious matter.

      Matthew Weiss

  72. MIKE March 12, 2012 10:12 am Reply

    Got a ticket under the 1225D section. Its reads”IN USE OF ELECTRONIC DEVICE VEH IN MONTIOIN RT HAND CLOSE PROX E- ( i phone music). I was listening to Adele. Since the office acknowledged that it was music and that I was not texting etc. is it worth a fight?

    Thanks for have this web site.
    M

    • Matthew Weiss March 12, 2012 1:06 pm Reply

      Mike,

      This ticket carries 3 points and roughly a $150 fine. If you have a clean record, you may or may not want to fight it (especially if you are not prone to getting tickets). If you have any other points, then definitely fight it.

      Matthew Weiss

  73. Karyn March 8, 2012 10:48 pm Reply

    I was issued a ticket in violation of 1225-d in NYC (I believe, in the Traffic Violations Bureau System). What are the chances of negotiating for a zero point ticket? I am willing to pay the fine but want to avoid the points.

  74. Jim C March 3, 2012 1:51 pm Reply

    I was wondering if this law applies to CB radios, If so truckers will not sit still for this also this law excludes police they must have special training as to how not be distracted while using these devices especially since you will never see a cop driving the posted speed limit

    • Matthew Weiss March 3, 2012 6:13 pm Reply

      Jim C,

      VTL Section 1225-d(2)(A) defines a “Portable electronic device” 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.” As I read this definition, CB radios are not included within the law’s ambit.

      Matthew Weiss

  75. wale said February 23, 2012 8:44 pm Reply

    Good Mr. Weiss
    i was cited today for having my cell phone in my hand, even – though i was not using it but what really caught me off guard was that i was wearing my bluetooth and he still gave me a ticket and wrote on the ticket “no hands free device” this is a blatant lie i was wearing my bluetooth and i also have the phone records that show i was not using the phone nor texting but its my word against theirs……….. what do i do

    • Matthew Weiss February 24, 2012 9:11 am Reply

      Wale Said,

      You should plead not guilty and fight this 3-point ticket. If you do, you may be able to negotiate it down to a harmless 0-point ticket (assuming your ticket was issued outside the Traffic Violations Bureau system). If it is a TVB case, then you have nothing to lose by fighting it. Either way, fight it and present your evidence.

      Good luck.

      Matthew Weiss

  76. Dave February 18, 2012 11:48 am Reply

    I received the citation for 1225d yesterday. I was holding the phone nothing more. When I receive calls it goes through my cars Bluetooth and is hands free. I can prove I was not using the phone from the monthly statement and I don’t have texting. It’s actually blocked on my phone at my request. Am I still screwed? I have no record and am concerned about points. Might I get a break here?
    I think I have a solution for the future that I want to run by you. I was a cell phone dealer and have some old nonfunctional demo phones still. I’ll keep one in the car and if I’m pulled over I’ll hand it to him proving it is not an electronic device, just a hunk of plastic. What can he do then?

    • Matthew Weiss February 18, 2012 10:15 pm Reply

      Dave,

      Your solution is creative but less than ideal. I suggest that you use your Bluetooth and do not hold your phone (or any other electronic device). In terms of your 1225d ticket, plead not guilty and, on your court date, hopefully you can negotiate a 0-point plea bargain.

      Good luck!

      Matthew Weiss

      • Dave February 18, 2012 11:08 pm Reply

        I’m not going to hold any electronic device, just a hunk of plastic, and it’s perfectly legal. I’ll do it in front of the officer that wrote me so he pulls me over, and it should diminish his case against me. It will prove there is no merit to a law that presumes we are guilty until proven innocent. Does this not make sense?

        • Matthew Weiss February 19, 2012 8:08 am Reply

          Dave,

          It makes sense but my concern is that this tactic could lead to you being stopped, and possibly getting another ticket (even if wrongly-issued). Is this really worth it? In most courts, you can negotiate a 1225d case down to a 0-point parking ticket. You’re call but, either way, let us know how you make out with your defense.

          Matthew Weiss

  77. Dave K February 14, 2012 9:42 am Reply

    I’m going to take my chances on going for a throw away on the ticket. 2 ways out,

    “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.” (My cell phone records). This cant prove I wasn’t looking at the time but the way the law is written, all I need is “evidence Tending to show” as opposed to unquestionable proof.

    If that isn’t good enough, and they want me to prove that I wasnt reading the time or date then I move to… The meaning of the hands free law prohibits the use of a mobile phone with either hand but “shall not include holding a mobile phone to activate, deactivate or initiate a function of such telephone.” Looking at time or date is simply initiating a function of the phone.

    Yup, a landscaper in february is a guy with WAY to much time on his hands. What do you think?

    Dave

    • Matthew Weiss February 14, 2012 11:42 pm Reply

      Dave K,

      I don’t predict the outcome of these things. Get your evidence together and practice presenting it in a clear and concise manner. Hopefully, you get a good outcome.

      Good luck!

      Matthew Weiss

  78. Dave K February 13, 2012 11:19 pm Reply

    I recieved the citation for 1225d today. I was fidgeting with my phone. If Im being honest I was actually biting it…. I fidget alot. Perhaps A.D.D. I proved through the history that I wasnt using it but the officer said I cant prove I wasnt looking at the time or date. Is that considered “viewing an image”???

    • Matthew Weiss February 14, 2012 9:05 am Reply

      Dave K,

      The mere act of holding your phone while driving creates a presumption of use which you (not the police) must overcome if you are to beat this ticket at trial or hearing. Viewing the screen is clearly a “use” under VTL 1225d.

      Matthew Weiss

      PS If you got this ticket outside of NYC, western Suffolk, Buffalo and Rochester, then plead not guilty and try and work out a plea bargain to a lesser charge.

  79. Vince February 3, 2012 7:56 am Reply

    I was pulled over under section 1225d by an officer on 87 near Platekill. I had a hands free set on and was trying to make a call using the Siri application on the iPhone. As many likely know who have this phone it works imperfectly and brought up several contacts with the same first name. I had to glance at the screen and choose the correct contact to make the call. Is it worth fighting this ticket? I was not texting or emailing. If so should I bring my phone to show that I have no outgoing emails or texts at that time? Is it true that although you are allowed to “use” your phone via hands free device that you cannot dial it or engage it in anyway that would be required to make a call? Frankly I knew the cop was there but have always thought you could make a call just not text or email. Seems unclear to me if I have any grounds for dismissal. I will likely fight to make certain if I can reduce or wipe out the points that I will do so but I am trying to figure out if I actually am in violation of the law.

    Thanks for all your insight – for me personally in advance and for everyone above.

    • Matthew Weiss February 3, 2012 10:52 pm Reply

      Vince,

      Unfortunately, you learned a lesson about fiddling with your iPhone in front of a police officer. The new law creates a presumption of use for any motorist who is seen holding his or her phone while operating a motor vehicle. You can try and disprove use but the new law places the burden on you.

      My advice would to plead not guilty and, on your court date, ask for a conference where you can likely negotiate a lea bargain to a more favorable (i.e., 0-point) charge.

      Matthew Weiss

  80. Mark January 19, 2012 8:38 pm Reply

    Hi Matthew…

    I recently received a ticket on I-87 in New York near Saratoga while I was using my iPhone’s GPS capability to determine my correct exit, and directions to my destination. I explained this to the officer, who was courteous but seemed uninterested in any details about why I was using the handheld, and issued the ticket for NYS V AND T LAW. Is this ticket worth contesting based on my use of the device? I’m guessing were the burden of proof even to be considered and considerable I could support it with my iPhone billing statement. Are many people running into this problem? It seems somewhat hypocritical that it is legal for someone to fiddle excessively with their window-mounted GPS device in order to finesse their destination or other data, but that using a handheld (safer in my estimation as it can be positioned by the driver in such a way as to stay MORE attentive to the road, and positioned to require less in-auto-gymnastics common with a stationary window mounted device) falls under this law’s blanket. Thanks for any knowledge or suggestions, m.

  81. howard January 10, 2012 9:41 am Reply

    (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.

    I’m assuming based on this law, just holding the phone in one hand and not actively “using” it based on the list given would not permit for a ticket.
    However because of section 4
    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.
    They can be pulled over and issued a citation, but if they can prove to the judge that it was not being viewed or being “used” at the time of issuing the ticket.
    Would this be correct, understanding and reading these laws are so mind boggling sometimes.

    Also I had another question. Are we allowed to bring written notarized statement to the court as proof of evidence? Since the witnesses will not be in town for they are visitors and is it possible I can get the police officers notes before time of trail? And if so do I just request it when mailing in my ticket?

    • Matthew Weiss January 10, 2012 3:15 pm Reply

      Howard,

      Your interpretation is correct. If you are holding such a device, there is a presumption of use which the motorist (not the police) must overcome. It makes it easier for the officer t prove his or her case.

      Some courts will accept a notarized statement and others will not. Similarly, in regard to discovery, some courts allow for it and others do not. I would check with the court on both issues prior to the court date so you won’t be surprised.

      Matthew Weiss

  82. adrian November 7, 2011 2:09 pm Reply

    I JUST BEAT MY TICKET

    the cop had like 6 hearings before me. one well dressed Korean guy: cop said.he saw him with cell phone in hand stretch.out.in front of him.
    Korean. said he was talking but not texting.or doing.anything. just talking. judge dismissed.not guilty.
    my turn
    cop had very good details that I had a cracked phone and.said I was charging. all true
    judge asked cop if I was talking.of texting. he said he didn’t know. not.in.his.notes
    judge dismissed. didn’t let me.defend or say anything. not guilty

    hope it helps

    FIGHT.THE POWR!

  83. Dan November 3, 2011 10:44 pm Reply

    I received a ticket in Syracuse this evening for operating a cell phone while driving (1225-d). The ticket states that the officer observed me holding a cell phone in front of my chest as I drove. I was holding the device in my hand with my arm on the armrest of the car seat, listening to satellite radio over the phone speaker. When I explained this to the officer, I was told ‘don’t insult my intelligence.’

    If I read the law correctly, I did not commit a violation as I was neither talking, playing games, viewing or transmitting images nor operating the various email/text features.

    What do I have to do to prove that I was not ‘using’ the device as specified in the law? Is merely submitting a bill showing no calls/texts/emails within a reasonable time of the traffic stop sufficient?

    • 888redlight November 4, 2011 9:33 am Reply

      Dan,

      You will need to do more than just submit a bill. If you fight this ticket, you will have to testify at trial and produce any evidence that you have which exculpates you (ex., your cell phone and cell phone bill).

      This ticket carries 3 points and roughly a $200 fine so it’s likely worth your effort to fight it. You likely will be able to negotiate a reduce charge if you prefer to avoid the effort and risk of a trial.

      Good luck!

      Matthew Weiss

  84. Josh August 11, 2011 4:58 pm Reply

    I received a ticket for “texting while driving”, while all I did was press the speakerphone button while my blackberry was on my lap. When I explained to the officer that I was not texting and offered to show him my phone as proof, he changed the claim from “texting while driving”, to using a phone while the vehicle was in motion. The ticket is a VTL 1225-C. I plan on fighting my ticket. The court has offered me to mail in a not-guilty claim and I will have a pre-trial conference before the court date. Is it beneficial to take advantage of that opportunity. What is my best defense to prove that I was not texting while driving?
    Thank You

    • 888redlight August 11, 2011 8:18 pm Reply

      Josh,

      This ticket carries 3 points and is, therefore, worth fighting. Definitely attend the pre-trial conference as you likely can work out a non-point result.

      VTL 1225-c is a ticket for using a cell phone without a hands-free device. If you cannot work out a plea bargain, then you best defenses at trial are that your device was not in the immediate proximity of your ear and that you were using a hands-free device (i.e., the internal speaker).

      Good luck fighting this ticket.

      Matthew Weiss

  85. Alyson July 29, 2011 10:53 am Reply

    I was given a ticket in Manhattan yesterday for “texting” while stopped at a red light and using the GPS on my Android. I repeatedly tried to tell the officer I was not texting and tried to show her my phone, but this obviously did not work. The ticket says “texting” on it, not “cell phone use”. Do I have a valid case if I plead not guilty with a copy of my cell phone record that clearly indicates I did not send or receive any text messages at the time the ticket was given? I have proof that I was not “texting” as the ticket says, and my car was also not in motion at the time. Any advice to try and avoid points on my license for something I was not doing would be greatly appreciated – thank you!

    • 888redlight July 29, 2011 11:11 am Reply

      Alyson,

      While technically you were not “texting”, arguably you violated VTL 1225-d by using the device while your car was in motion. You may be able to win if you can prove that you were not using it. This ticket carries 3 points so it probably worth fighting.

      Call me if you have any further questions.

      Matthew Weiss

  86. dave c July 25, 2011 3:42 pm Reply

    The presumption is the clause I was thinking of when I wrote the question. I got a ticket today under section C (cell phones) not D (PDA) but the same same presumption applies. I was a little peeved when I made the inquiry – let’s challenge the presumption as unconstitutional. You in? How much? Email me at the address provided if you are interested. This law is a joke – I was using my car bluetooth but holding my phone in my hand and some clown gives me a 3 point ticket and I am presumed guilty – can’t be, can it?

  87. dave c July 25, 2011 2:43 pm Reply

    Do think the definitions provided make the new law unconstitutionally vague? The definition of use is so broad that illegal conduct cannot be defined separately from legal conduct. Holding a phone in one’s hand while not activated for a call is use and therefore illegal? Seems over broad and vague to me. Your thoughts are appreciated.

    • 888redlight July 25, 2011 2:53 pm Reply

      Dave C,

      The definition of “use” requires holding the portable device AND “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.” Therefore, I do not think the term “use” can be construed as using an electronic device for any purpose, or be considered over-broad.

      I am curious, however, about a challenge to the presumption of use. That is, “[a] person who holds a portable electronic device in a conspicuous manner while operating a motor vehicle is presumed to be using such device”. I can envision a challenge to shifting the burden from requiring the People to prove a VTL 1225-d violation to requiring a motorist to “un-prove” a violation.

      Matthew Weiss

  88. KEN BATCHLER July 25, 2011 9:46 am Reply

    our son got ticketed for using his mp3 player AND i’m sure his out of state plates had something to do with this as well. does he plead not guilty and show the judge his mp3 player or what? the fine is no big deal. it’s the friggin 3 points!

    • 888redlight July 25, 2011 12:43 pm Reply

      Ken,

      Your son may have a valid defense to this ticket. I just blogged about this very issue.

      I wrote:

      I expect motorist using legal mp3 devices to also be wrongly ticketed. 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, gaming or texting capacity like an Apple iTouch device). Of course, don’t be surprised if zealous police officers write you up for using an mp3 especially while the law is still new and police officers have not been fully educated.

      Even if he was using a proscribed device, there may be a way to avoid the 3 points. Feel free to call us to discuss further.

      Matthew Weiss
      212-683-7373

  89. Rick DeFazio July 21, 2011 2:47 pm Reply

    The new law: “In motion.” Does that mean if I’m stopped at a light and talking or texting while the car is at a standstill I am not guilty?

    • 888redlight July 21, 2011 10:59 pm Reply

      Rick,

      Great question! The phrase “in motion” has not yet been construed by any court as the law is just over a week old. I am sure it will be litigated at some point soon, however.

      My opinion is that most courts will interpret “in motion” to mean when the motorist is behind the wheel with the car in “Drive”. Therefore, stopping at a light is “in motion”. I highly recommend pulling over if you need to text or otherwise use an electronic device.

      Thanks for submitting this excellent question.

      Matthew Weiss

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