Can I Use My Cell Phone Or Electronic Device While Stopped In Traffic?

18 Comments

The New York Legislature recently amended Vehicle and Traffic Law (“VTL”) Sections 1225-c and 1225-d to arguably permit an motorist to use a cell phone or electronic device while temporarily stopped in traffic or at a stop light.  Specifically, VTL 1225-c(2)(a) now reads (VTL 1225-d has similar language)

Except as otherwise provided in this section, no person shall operate a motor vehicle upon a public highway while using a mobile telephone to engage in a call while such vehicle is in motionprovided, however, that no person shall operate a commercial motor vehicle while using a mobile telephone to engage in a call on a public highway including while temporarily stationary because of traffic, a traffic control device, or other momentary delays. Provided further, however, that a person shall not be deemed to be operating a commercial motor vehicle while using a mobile telephone to engage in a call on a public highway when such vehicle is stopped at the side of, or off, a public highway in a location where such vehicle is not otherwise prohibited from stopping by law, rule, regulation or any lawful order or direction of a police officer.

The bold language above makes it unlawful for the driver of a commercial vehicle to use a mobile device while stopped in traffic or at a red light.  By inference, then, such activity is allowed for drivers of other vehicles who are stopped.  Therefore, you arguably can use your phone or electronic device while, for example, stopped at a red light.

However, BEFORE you grab your iPhone, MY ADVICE IS NOT TO DO SO.  Roughly forty percent of the tickets for which clients hire us these days are for cell phone and electronic devices violations, and NYPD police officer routinely issue them to stopped drivers.  Stated differently, the above-quoted language notwithstanding, motorists are still regularly receiving such tickets for using their devices even while stopped.  At the hearing, the officer will always say the vehicle was in motion because he or she will usually testify by script (a memorized dialogue or recorded fill-in-the-blank document).  Motorists will come to court and testify that they were stopped at a light when they “used” their device but such testimony amounts simply to denying the officer’s testimony.  In such circumstances, the TVB judge will ALWAYS take the word of the officer and pronounce GUILTY!  Welcome to the TVB!

Bottom line:  You are asking for trouble if you pick up your phone while stopped.  I know it is not fair but you are much better off without the ticket than being “right”.  Further, it is VERY hard to win in the Traffic Violations Bureau and the chances of winning even if you are “right” are unreasonably low.  Hence, I strongly recommend that you to continue to refrain from touching, holding or using your devices while your transmission is in drive.

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18 Comments. Leave new

  • Got a ticket in nyc for not having a vehicle tax stamp. I do not work in the city. I have to go to New Jersey so I have to pass through the city to take the Holland tunnel. I do not work in new York city and they keep giving a ticket for not having a stamp. What can I do?

    Reply
    • Colleen,

      You should plead not guilty and fight this ticket. If you are only occasionally driving this commercial vehicle in NYC, then you are not required to have a tax stamp.

      Matthew Weiss

      Reply
  • Thanks for getting back. I have a good driving record and been driving over 25 years. I was driving home one evening and I was using a wireless bluetooth. I had just spilled coffee so my immediate response was to picked up my GPS out of the cup holder to prevent any damage (GPS was not turned on). I had both hands on the wheel, . With the gps in hand. The officer made an assumption that i was talking on my cell phone. I showed him my headset, but he still gave me a ticket. Do I have a good chance in court? If not, if i plead guilty and pay the fine do i still get 5 points on my license.?

    Reply
    • Winnie,

      It is impossible to advise whether you have a good chance to win. It depends on too many variables. With that said, I still recommend that you plead not guilty as this is the only way to possibly save points and money.

      Good luck!

      Matthew Weiss

      Reply
  • Hello Matthew, when an officer gives you a ticket for cell phone usages. Is it an automatic conviction and 5 points off? Or this is determined in court?

    Reply
    • Winnie,

      The issuance of a traffic ticket (including a cell phone ticket) does not mean your are automatically guilty. You have the option of fighting it by pleading not guilty or accepting the offense and pleading guilty.

      Matthew Weiss

      Reply
  • What I am saying is the officer has to use some type of descriptive words to fully describe a cell phone or portable electronic device as opposed to a motorist holding a coffee cup, or wallet etc.??

    Reply
    • Brian,

      I understand your argument. In most instances at the Traffic Violations Bureau, the officer will clear state that the motorist was holding a cell phone. He may or may not describe the manufacturer of that device, and many judges will not require the officer to provide this item of information.

      Matthew Weiss

      Reply
  • Another question not being asked is the ticketing officer required to describe the type , color etc. Of cell phone or electronic device in order to form a prima facia case? Otherwise an officer could just “guess” that there actually is the mentioned devices and hope for a win, right?

    Reply
    • The type and color of the cell phone are not prima facie elements of this offense (although they could be relevant in our defense based on the weight of the evidence).

      Matthew Weiss

      Reply
  • It was interesting to read all of the comments on the cell phone laws. The common theme that resonates is that our legislators have written a vague set of laws intentionally to creae confusion and lots of interpretaion so as to maximize revenue that wouldn’t be tolerated as an income tax increase. These motorists have to realize that NY can not normally get alot of income tax from middle class and lower income individuals due to the skewed tax brackets. That is to say when accounting for the itemizations and dependent deductions many individuals are not really paying that much incomd tax. So the shell game is issuing as many traffic summonses as possible to gain revenue. You, and everyone else should put the pressure on the legislators to concisely clarify the cell phone law to rule out bad assumptions and interpretations. Personally I do not believe that cell phone calls alone cause accidents, not withstanding texting. These laws are the rsult of ovezealous politicians seeking publicity but also genrati g revenue.

    Reply
  • Indirect taxing authority indeed!! Last year I had hired you guys to rescue me from exactly this type of ticket.

    I had been stopped at a red light in a traffic jam when a foot patrol cop merely SAW that I had a cell phone on the console – perhaps because it lights up while charging. Even though I had offered the officer the opportunity to look at my phone to prove no calls or texts had been made (after all everything’s time stamped) he said I could’ve been playing a game on my phone and wasn’t interested.

    I felt like I was living in some communist prison state, not New York City.

    Fortunately, you guys were able to postpone my kangaroo court trial so that although they of course found me guilty I didn’t get the points and thus lose my license. I wish there was some class action law suit for victims of bureaucracy to recompense themselves of traumatic events at the hands of “the law.”

    Reply
  • Please help me I showed proof and still received a ticket and 5 points off for using a phone

    Reply
    • Sylvia,

      If you’ve been convicted already, then you’re only recourse is to appeal. In NYC, you only have 30 days from the date of conviction to appeal.

      Good luck!

      Matthew Weiss

      Reply
  • I got a ticket, for cellphone use
    Over a year later I got a date to see judge at tvb, I showed my phone bill proving that my phone not in use(25 min) until 10 min after I got ticket from officer, the judge just said guilty
    Have to pay the ticket and 5 points.
    I got pulled over cause my right indicator light not working, I send in the ticket and payment $138
    I got a letter in the mail, need to pay $375 for drivers responsibility
    God bless America, what a currupt system.

    Reply

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