NY's New Portable Electronic Device Law – VTL § 1225-d Analysis

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.

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372 Comments. Leave new

  • Mr. Weiss, I was issues a ticket for violation 1225-C 02A which reads “no person shall operate a motor vehicle upon public highway while using a mobile telephone to engage in a call while such vehicle is in motion. I have decided to not take the plea and go to trial. I have cell phone records from the provider showing no cell data or text data used 15 minutes prior to the ticket time and 30 minutes after the ticket time. I feel no other evidence is needed since the officer did not site 1225 D, which would be harder for me to prove an unjust ticket. The VTL specifically specifies “engaged in a call”. Agree?

    Reply
    • Mike,

      Your records do not absolutely vindicate you. For instance, the judge could question whether you were using a different phone at the time, and the prosecutor could seek to amend the charge to 1225D.

      With that said, good luck at your trial. We hope you win your case.

      Matthew Weiss

      Reply
  • I was listening to “standup comedy” from youtube on a phone that was mounted in a holder on the right from the center of my windshield. Of course I wasn’t looking at it because … it was a guy with a microphone talking jokes for an hour. It was just about listening, learning english and killing time. I didn’t touch the phone at all and the police officer knew that and confirmed. He said that I can’t have any device running like that on the windshield. He also said that the ticket he is giving me is not same as talking or texting on the phone and made it sound like tinny violation. But it does say “oper mv while using portable elec dev” 1225D From what I see here, “using” means actually holding/touching. And that I know is really bad. Did he lie to me? Do I have a chance if I plea not guilty? I have a perfect driving record, I don’t want this to ruin my insurance bills.

    Reply
    • MRG,

      If the police concedes that you were not holding the phone at any time, then you could win. Of curse, I wouldn’t be surprised if the police office testifies that you were holding it.

      Matthew Weiss

      Reply
  • I was issued a traffic violation 1225-D (1) in Manhattan. I was stopped at a red light and was “pairing” my iPhone to my hands free system in my wife’s car as the car.

    My question is whether there is a winning argument that pairing a phone does not fall into Section 1225-D (paragraph 2 (b) ) which reads as follows: “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.

    The patrol officer was not interested in understanding why I had the phone in my hand and issued a ticket. I am less concerned about the fine of $138 , but very concerned about the possible 3-5 year affect on my auto insurance.

    Thanks

    Reply
    • Mark,

      If you were holding the phone while driving, then you are presumed to be in violation of 1225-D under New York law. Further, you need to “view” your screen in order to pair it so I interpret it as an illegal “use”. With that said, please do not interpret anything in this response as intended to discourage you from fighting your ticket.

      Matthew Weiss

      Reply
      • Thank you Matthew. Another question. If the officer misspelled my last name but everything else is correct, could I successfully argue that the ticket was improperly issued and would the ticket be dismissed?

        Reply
  • Hi i recieved a ticket oper motor vehicle while using portable electronic device 1225-D (1) but i was holding my cel for a second to read my next exist. the police officer told me i was texting while driving. I want to know like is a first offence if i would have points on my licence he also told me to pleas as not guilty and schedule a hearing. he told me to do that 3 times and i will be dismiss.

    Reply
    • Matthew Weiss
      June 28, 2019 11:12 am

      Alex,

      This ticket carries 5 points. As for his other advice, it is not accurate. If you plead not guilty, the officer will be scheduled to appear on your court date. If he or she fails to appear, a NYC traffic judge may give the officer a second chance to appear. But, after two non-appearances by the officer, the NYC ticket will almost always be dismissed.

      Matthew Weiss

      Reply
  • i just got a 1225d ticket on my way home today because my navigation holder which was attached to my phone fell down. I quickly went to pick up the navigation holder with my phone attached to it to re-stick to my car when I was pulled over by a cop. He asked me for my license and registration. I asked him why I was being pulled over and he said “for holding your phone”. I quickly tried to explain to the cop that I WAS NOT holding my phone, I was simply holding the navigation holder with my phone in it to reattach it because it fell. He didn’t care and game a ticket anyways for “using electronic portable device.” Now it went from him telling me I was holding it (which i wasn’t) to me “using it.” Help!

    Reply
    • Matthew Weiss
      April 16, 2019 11:15 pm

      Talia,

      Because it will be your words versus the police officer’s, it will be tough to with this defense.

      Matthew Weiss

      Reply
  • Robert S Nelson
    March 21, 2019 10:56 am

    I received an 1225-d ticket in May of 2018 on Staten Island – during what appeared to be a ticketing blitz – and have plead not guilty. My court date is coming up and I wanted to ask for some advice. The officer stated that he saw my “finger swipe across the screen”, but did not mention that I was “holding” the phone. That is because it was prominently mounted on the dash. There is also the fact that I was in the middle of a bluetooth phone call that started nearly 40 minutes prior to the ticket being issued and ended as I was getting pulled over. I was planning on submitting my phone records showing I was on call at the time the alleged violation occurred, but I am worried that it might prove the opposite. I was also planning on submitting the invoice for my dashmount from 2017 as well as pictures of my dash with it installed. In your expert opinion, would this be an intelligent strategy? To be honest, I am not terribly concerned about the fine – but I will not take points on my license for something I did not do.

    Reply
    • Matthew Weiss
      March 21, 2019 11:44 am

      Robert S Nelson,

      In NYC, you either get the fine and points, or nothing. There is no opportunity for a fine with no points.

      Your strategy seems like but be prepared for the police officer to disagree and for the judge to defer to the police officer.

      Matthew Weiss

      Reply
      • Robert S Nelson
        March 21, 2019 1:13 pm

        Thank you for your swift reply. This is my first moving violation in 20+ years of driving so I am unaware of how things work. I am sure everyone says they didn’t do – but I am being honest here – my phone was not in my hands – never is when I am driving – and I did not touch it. I cannot – for the life of me – figure out how to prove my innocence when the judge will always side with the officer. I thank you and I am hoping for the best.

        Reply
  • KHYATHIKIRAN GUNDAPANENI
    January 16, 2019 12:49 pm

    Hi I got ticket under 1225 d is this have points and affect my insurance

    Reply
    • Matthew Weiss
      January 16, 2019 3:44 pm

      KHYATHIKIRAN GUNDAPANENI,

      This ticket carries 5 DMV points but will only affect your insurance rates if you have another moving violation conviction within 36 months.

      Matthew Weiss

      Reply
  • My wife received a 1225d ticket in westchester county for holding her phone in her right hand. She was not doing anything with it, and she sometimes by habit simply holds it. How does one fight the presumption of use under 1225d? Or is it simply the officer’s word vs. my wife’s?

    Reply
    • Matthew Weiss
      December 9, 2018 8:35 am

      Chris,

      Your wife can present her phone records to try and overcome the presumption of use. She can also testify under oath. With that said, neither of these guarantee success. Therefore, I suggest that she explore a plea bargain with the prosecutor before deciding whether to roll the dice at a trial.

      Good luck!

      Matthew Weiss

      Reply
  • I was ticketed for being on the phone,it was a cigarette. The spotter ahead of the checkpoint told the officer I was on the phone.I pleaded with the officer to check my phone,which was zipped up in my coat.My phone records prove that my phone was not in use an hour before and two hours after my ticket.The Assistant District Attorney reduced it to a parking ticket,have not submitted it yet.I feel I shouldn’t plead guilty to anything.I’m so upset about this. Any suggestions?

    Reply
    • Matthew Weiss
      December 6, 2018 7:17 am

      John,

      Yes, take the parking ticket offer. It may be frustrating but, at least, you get 0 points and no impact on your license or insurance. We represent many motoists with this ticket and would LOVE to get a mere parking ticket for the same charge. Many courts are not so generous.

      Matthew Weiss

      Reply
      • Matthew, thank you for the advice ! I really thought I could get off using my phone records. I pleaded with the officer to check my phone,he wanted no part of it. It is frustrating that I am going to pay for something I did not do. It’s a hard pill to swallow,but I will take your advice.Once again,thank you..

        Reply
  • Hi, I got a 1225 D ticket while driving with a suspended license. The officer did not arrest me and only gave me a ticket for the cell phone. what can I expect to happen next if I decided to plead not guilty to the ticket?

    Reply
    • Brianna,

      You will not likely be given any additional charge. Therefore, you will either win or lose your 1225D ticket.

      Matthew Weiss

      Reply
  • Hi Mr Wiess,
    I recently got a 1225 D for only glancing at my cellphone. However, my driver’s license has an incorrect address which was a mistake on DMV. Can I get this ticket dismissed. Thanks!

    Reply
  • Shavonne Overton
    May 15, 2018 8:45 am

    Good morning,

    I was lost upstate after leaving the gas station on the way home. Had my gps in my hand and the cop pulled me over because he said he saw me looking at it while driving. I told him I was lost. He said I could write a letter to the judge and gave me a ticket. I’m not sure what to do.

    Reply
    • Matthew Weiss
      May 15, 2018 6:46 pm

      Shavonne Overton,

      We spoke earlier today. As we discussed, we recommend pleading not guilty as this is the only way to possibly obtain a more favorable outcome. Thanks for hiring us. We’ll do our best for you.

      Matthew Weiss

      Reply
  • I am a physician but was driving a rental car, no MD plates on that car. I took my phone as nurses were contacting me as I was on call at the time. I told the officer this but he just said ok and wrote me a ticket.

    Reply
    • Matthew Weiss
      May 14, 2018 10:09 pm

      Alex,

      In New York, you cannot use an electronic device without a hands-free device unless it is a true emergency. In my opinion, being on call, alone, is not an emergency as that is interpreted by most traffic judges.

      Matthew Weiss

      Reply
  • i just received a ticket in queens county for having an electronic device in my hand. i literally grabbed it for a few seconds at a red light and did not use it or look at it during those 5 seconds. an unmarked police car (jeep) pulled right on top of me to the right at a red light and from his view he can see that i had the phone in my hand for few seconds, but again i wasn’t using it and held the phone on top of the cup holder for a few seconds. would this be considered a violation ?

    Reply
    • Matthew Weiss
      May 8, 2018 4:02 pm

      Dan,

      The real question is how will the police officer describe your electronic device use? A traffic judge will likely believe the officer’s version over yours. Further, when a motorist holds an electronic device, there is a presumption of illegal use.

      With all that said, we still recommend pleading not guilty as this is the only way to possibly obtain a more favorable outcome.

      Matthew Weiss

      Matthew Weiss

      Reply
  • John Millsap
    March 16, 2018 8:34 am

    Hey Mathew,

    I was turning my navigation off getting right off the highway and the officer cited me for a 1225D1. The officer made a mistake on my ticket and didn’t even correctly write my name. The car is registered under my dads name (guessing he took name from registration) and he wrote out the ticket to my dads name but used my license ID number, date of birth etc. My dad wasn’t even in the car nore did the officer see his license to write it out to his name. My name and my dads last name is same but first name isnt even close. Is that grounds of getting it dismissed?

    Reply
    • Matthew Weiss
      March 16, 2018 9:43 am

      John Millsap,

      You could possibly win on these grounds. Good luck!

      Matthew Weiss

      Reply
      • How would i go about doing so? What would be my approach in traffic court with the judge? Would i just say ticket isnt even in my name?

        Thank you

        Reply
        • Matthew Weiss
          March 17, 2018 10:45 am

          john milsap,

          Yes, you would argue that the ticket was improperly issued.

          Good luck!

          Matthew Weiss

          Reply
  • I got this same ticket, but the phone was not a working phone. The cop would not look at the phone, nor talk to me about it. Now I have to go to court

    Reply
    • Griffith,

      Were you holding it? If so, why?

      Holding an electronic device while driving in NY creates a presumption of guilt.

      Matthew Weiss

      Reply
    • I got a ticket too but the crazy thing is I wasn’t holding the device. The passenger riding in the automobile was on navigation. But I got the ticket even though she told him she wasn’t holding it.
      How do I fight that ticket? And I don’t live in the state anymore.

      Reply
      • Matthew Weiss
        March 12, 2018 9:17 am

        Iola,

        The only way to fight your electronic device ticket is by pleading not guilty. If you cannot return to New York, then you can retain a NY traffic ticket lawyer to appear for you.

        Matthew Weiss

        Reply
        • Yes, I believe a lawyer would be wise. I just need a lawyer that is confident enough to win my case. I don’t have any violations and I haven’t had as much as a parking ticket in about 6 or 7 years. So I need advice on what I should do.

          Reply

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