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.
GPS devices present an interesting question. 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.
380 Comments. Leave new
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.
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
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
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
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
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
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
Phil,
Answers to all these questions are contained in my article entitled “A Guide To Calculating DMV Points“.
If you have any other questions after reading this article, just let me know.
Matthew Weiss
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?
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
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!
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
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!
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
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!
Jason Lee,
If you plead guilty using the DMV Online System, you’ll know the precise fine. I therefore recommend using it.
Matthew Weiss
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
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!
Jennifer,
Yes, mail it in with a not guilty plea.
Matthew Weiss
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.
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
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!!!
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
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!?
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
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” ?
Pete,
Yes, you can argue this defense but it must have actually been an emergency (rather than a potential emergency). With this said, there is no downside to fight your ticket (other than your time spent in court or the cost of a NY traffic ticket lawyer).
Good luck!
Matthew Weiss
I am very confused by this law, as it applies to mp3 players. Over at this article https://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.
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
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
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
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…..
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
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?
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
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.
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
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.”
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
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?
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
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.
Sam S,
I covered this issue in my blog post entitled “NY’s New Portable Electronic Device Law – VTL § 1225-d Analysis“. As you’ll read, holding a GPS is a violation of the law. With that said, you may still be able to successfully fight this ticket. You should consult with a NY traffic ticket lawyer.
Matthew Weiss
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 ?
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
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!
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
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.
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
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.
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
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
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.
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
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?
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
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
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
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!
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
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.
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
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.
Christopher,
Based on these facts, you did not violate the law (even if you were holding an electric screwdriver). Plead not guilty and fight this NY traffic ticket.
Matthew Weiss
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.
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
I just got a ticket for using my cell phone n driving. What should I plead. N what will happen if I plead guilty.
Jessy,
You should plead not guilty to try and avoid the points and possibly fine.
Matthew Weiss
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 !
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
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.
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
Any GPS test cases yet?
Greg,
Great question. We have one pending in our office but the court date is not until September.
Why did you get one?
Matthew Weiss
How did you make out with your GPS case?
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.
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
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?
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
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?
TJ,
Yes, if you are using your mobile device with hands-free technology, then you shouldn’t get an electronic device ticket.
Matthew Weiss
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…
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
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.
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
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
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
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.
Karyn,
The chances of negotiating a 0-point ticket at the Traffic Violations Bureau is 0%. The TVB does not plea bargain. The only way to avoid points is to plea not guilty and beat this ticket at a hearing. For further information about the TVB, read my article entitled “Fighting A Traffic Ticket At The Traffic Violations Bureau“.
Good Luck!
Matthew Weiss
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
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
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
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
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?
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
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?
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
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
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
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”???
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.
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.
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
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.
Mark,
I recommend that you plead not guilty. You likely can negotiate a plea bargain to a 0-point ticket if you do.
Matthew Weiss
(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?
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
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!
Adrian,
Good for you. Congratulations!!
Matthew Weiss
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?
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
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
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
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!
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
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?
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.
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
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!
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
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?
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