Should I Fight My NY Electronic Device Ticket?

Electronic Device Ticket in New York: More than Cell Phones

New York State Vehicle and Traffic Law Section 1225(d) makes it illegal to do many things behind the wheel, not just texting.  For instance, just reading the screen of an electronic device is illegal.  Further, this law covers far more than just cell phones. New York State law allocates a ticket for using a GPS device, tablet, computer, digital camera, or any other electronic device while operating a vehicle.

Potential Penalties for Cell Phone Violations

If you are convicted of texting and driving, you will receive 5 points on your license. This is quite severe compared to most other moving violations. However, if you are a probationary or junior driver, the consequences are even more dire. A first offense will result in the suspension of your driving permit or license for 120 days. The second conviction within six months after the license has been restored will result in a revocation of at least one year.

Depending on how many tickets you have received in the past, you may have to pay between $50 and $450 for a cell phone ticket. For a first offense, the fine is between $50 and $200. For a second offense that occurs within a year and a half of the first, the maximum fine is $250. And if you receive a third or subsequent fine, your ticket may cost up to $450.

There is also a surcharge for each violation that can be up to $93.

Fighting a Cell Phone or Electronic Device Ticket in New York State is Not an Easy Task

Conviction of cell phone use, portable electronic device use, or a texting violation will result in points being added to your DMV driving record. If you receive 11 points in an 18-month period, your driver’s license may be suspended.

Cell phone or texting tickets issued in any of the five boroughs of New York City present a bigger challenge to drivers than those issued almost anywhere else in the state. Tickets issued in NYC must be taken up with the Traffic Violations Bureau, or TVB, which is part of the NYS Department of Motor Vehicles. TVB is much stricter than the typical traffic court for some of the following reasons:

• No plea bargains – Drivers who wish to fight their NYC cell phone/texting tickets must go to court and participate in a full hearing.  There is no possibility of negotiations for lesser charges in New York City.
• Clear and convincing evidence – TVB judges only need “clear and convincing evidence” to find you guilty, whereas most other traffic courts require proof “beyond a reasonable doubt”.
• Admissibility of hearsay – Hearsay is an oral or written statement made by someone other than the testifying witness. For example, if one officer repeats a claim made about the defendant by another officer, that would be considered hearsay. This is considered inadmissible in most traffic courts, but not the TVB. 

Are Commercial Vehicles and Truck Drivers in New York Exempt Cell Phone and Electronic Device Laws?

While there are different rules based on the type of vehicle driven, cell phone and electronic device laws will apply to both commercial and non-commercial vehicles alike. If anything, truck and commercial drivers should be even more cautious due to restrictions set by the Governor’s Traffic Safety Committee:

• A motor carrier may not require or allow drivers to use devices while driving.
• A mobile phone used by someone who operates a commercial motor vehicle should not be deemed a “hands-free mobile phone” when the driver presses more than one button to dial or answer.
• A commercial vehicle driver is not allowed to make a call or send a text while the vehicle is temporarily stationary due to traffic, a traffic control device, or other momentary delays.
• A commercial vehicle driver who holds a telephone to, or in the proximity of, his or her ear while the vehicle is temporarily stationary is presumed to be engaged in a call.
• A commercial vehicle driver who holds a portable electronic device in a conspicuous manner while the vehicle is temporarily stationary is presumed to be using the device.

New York Cell Phone/Texting Violations for Out-of-State Drivers

New York State has the authority to suspend someone’s right to drive within its borders for failing to respond or pay a cell phone or texting ticket issued here. Any driver who pays a New York cell phone or texting ticket will likely still have to deal with points, insurance increases, and fines associated with any convictions. This means that those convictions are subject to end up on your driving record and subsequently impact your auto insurance.  Further, a New York suspension is, in most cases, honored by other states.

For out-of-state drivers, you should know that every state handles a New York State traffic ticket conviction differently (although the 5 points that New York assigns to the violation will be noted by the NY DMV on the out-of-state driver’s NY record and can still result in the suspension of driving privileges in New York).

Some examples include:

• New Jersey – Any moving violation conviction that occurs in New York will normally assess two points on a New Jersey license from the NJ Motor Vehicle Commission. When it comes to a cell phone or texting tickets, New Jersey does not assess points until the third conviction, but these points will count towards suspension of both NY and NJ driving privileges.
• Connecticut – Connecticut drivers will not receive points on their license from the CT DMV after a cell phone or texting conviction in New York.
• Other states – Drivers licensed in any of the other 50 states and D.C. can read more about the effect of New York tickets on their out-of-state licenses at the NY DMV.

Defending Your Case: What Does an Officer Need to Establish in Court?

The basic elements of the charge are relatively simple: the person issued the summons must be the operator/driver of the vehicle, there must be a phone/device in the person’s hand being used, and the vehicle must be in motion. For commercial vehicles, devices cannot be used even while stopped at lights or in traffic.

The best defense is always avoiding the ticket in the first place. Keep your phone out of plain sight and do NOT pick it up (even at a red light).  However, the basic elements do not mean that these tickets are impossible to fight. Weiss and Associates, PC can fight your case and enhance your chances for potential success, but how our experienced traffic lawyers fight it varies upon a host of circumstances.

Cell Phone & Electronic Device Tickets FAQs

• Can I lose my driving privileges for a cell phone violation?
  • If this is the only violation on your record, then a suspension is highly unlikely. However, a cell phone violation adds 5 points to your license which is a big chunk of your allotted 10 total. Commercial drivers should be even more cautious since an accumulation of multiple convictions can quickly lead to the loss of commercial privileges.

• What if I just picked up my phone to…?
  • The law allows phones to be touched only to start or end a call. However, once a ticket has been written, you should expect the officer to testify that he or she saw more than a brief touching of the phone.

• What if it was an emergency?
  • The law has an emergency exception, but that is limited to conversations with police, fire, doctors, or hospitals. It is important to keep in mind that something like a call from a family member in the hospital is not covered, but a call from the doctor or hospital may be.

• What if I wasn’t texting or calling but just using GPS?
  • You are in violation if you hold the device and use the GPS. The device must be used hands-free.

• What if I have a witness that will testify that I wasn’t holding anything in my hand?
  • You can always have a witness to boost your defense and help dispute the charge in question.  However, judges often believe the police officer over the motorist and/or his witnesses.

• In courts that allow it, will a prosecutor reduce my cell phone ticket to no points?
  • Plea bargaining to a lesser charge is an available option outside of NYC but not in all courts. Some courts are tougher than others with this particular charge.

What Should I Do If I Receive A Cell Phone Ticket In New York?

As with all traffic ticket violations, cell phone and electronic device tickets are complicated and the defenses may vary based on the details of the offense, where the ticket was issued, etc. It is always a good idea to consult with seasoned professionals who understand the ins and outs of New York State traffic law before deciding how to proceed. Call Weiss & Associates, P.C. today at 212-683-7373 to speak with our dedicated and experienced traffic attorneys, and receive a free consultation.