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.

192 Comments

  1. 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

  2. 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

  3. 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

  4. 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

  5. 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

  6. 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

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