Having carefully read Vehicle and Traffic Law Section 1225-D (which becomes effective on November 1, 2009) with my New York traffic ticket lawyer eye, I have found a loophole in the law which is intended to prohibit motorists from text messaging and driving. The loophole is so big that it will allow many to continue to text and drive and others to possibly beat such a traffic ticket issued for this offense.
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 committed a separate violation of the law.
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.
Another loophole exists for those charged with violating Section 1225-D as well as some other traffic offense. If you can beat the other traffic violation, arguably the Section 1225-D ticket should also be dismissed as, with the dismissal of the other charge, there is no longer the separate violation of law predicate. It is like buy one, get one free (or more accurately beat one, beat one free).
How does this predicate requirement make any sense? How does this new law address the dangers of distracted drivers? Someone was asleep at the wheel when they approved this statute (pun intended).