When Does Stopped Mean Moving?

Screen Shot 2013-03-31 at 9.19.15 AMThe below post has been rendered moot by a recent amendment to VTL Sections 1225c and 1225d.  See below for the details.

The NY Legislature recently amended Vehicle and Traffic Law (“VTL”) Sections 1225-c and 1225-d to allow an motorist to arguably 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 motion; provided, 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 above-quoted language in bold makes it illegal for the operator of a commercial vehicle to use a mobile device while temporarily stationary (i.e., stopped in traffic or at a red light).  By inference, then, such activity is allowed for operators of other vehicles.  Therefore, you arguably can use your phone while stopped at a red light, for instance.

However, BEFORE you grab your phone, MY ADVICE IS NOT TO DO SO.  Roughly 40% 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.  Therefore, I urge you to continue to refrain from touching, holding or using your devices while your transmission is in drive.

Original Post:

In July 2011, I wrote a post entitled “Can I Check My Cell Phone While Stopped At Red Light?” answering this question in the negative because doing so was likely a violation of the Vehicle And Traffic Law.  I predicted that the phrase “in motion” in the cell phone law would be interpreted as prohibiting the use of an electronic device while stopped in traffic.

Recently, the Brighton Traffic Court was faced with this very question and ruled as I forewarned. Specifically, in People v. Winterhawk, the defendant was charged with violating §1225-c(2a) after a police officer saw him holding a cellphone to his ear while stopped at a traffic light.  The defendant testified that he was listening to his voicemail.

In ruling that the motorist was “in motion”, Justice Karen Morris explained that, unlike someone stopped in a parking spot, a motorist must remain alert even while stopped at a traffic signal.  Judge Morris wrote “Considering the legislative purpose of the statute to protect against accidents, to say that the car is not in motion while paused at a red light does not comport with the reality of the situation”.

In New York City, the Traffic Violations Bureau (“TVB”) does not issue written decisions.  However, our experience is that the TVB judges will likewise treat stopped in traffic as “moving”.

It is abundantly clear at this point that, if you need to use your cell phone while in a car, safety and the law mandate that you do so while in a parked position.  In New York, your are still “in motion” even when you’re stopped.

Below in bold is the text for NY’s cell phone law.  Subdivision (2) contains the “in motion” phrase that is discussed above.

1. For purposes of this section, the following terms shall mean: 

(a) “Mobile telephone” shall mean the device used by subscribers and other users of wireless telephone service to access such service. 
(b) “Wireless telephone service” shall mean two-way real time voice telecommunications service that is interconnected to a public switched telephone network and is provided by a commercial mobile radio service, as such term is defined by 47 C.F.R. S 20.3. 
(c) “Using” shall mean holding a mobile telephone to, or in the immediate proximity of, the user’s ear. 
(d) “Hand-held mobile telephone” shall mean a mobile telephone with which a user engages in a call using at least one hand. 
(e) “Hands-free mobile telephone” shall mean a mobile telephone that has an internal feature or function, or that is equipped with an attachment or addition, whether or not permanently part of such mobile telephone, by which a user engages in a call without the use of either hand, whether or not the use of either hand is necessary to activate, deactivate or initiate a function of such telephone. 
(f) “Engage in a call” shall mean talking into or listening on a hand-held mobile telephone, but shall not include holding a mobile telephone to activate, deactivate or initiate a function of such telephone. 
(g) “Immediate proximity” shall mean that distance as permits the operator of a mobile telephone to hear telecommunications transmitted over such mobile telephone, but shall not require physical contact with such operator’s ear. 

2. (a) 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 motion. (b) An operator of a motor vehicle who holds a mobile telephone to, or in the immediate proximity of his or her ear while such vehicle is in motion is presumed to be engaging in a call within the meaning of this section. The presumption established by this subdivision is rebuttable by evidence tending to show that the operator was not engaged in a call. (c) The provisions of this section shall not be construed as authorizing the seizure or forfeiture of a mobile telephone, unless otherwise provided by law.

3. Subdivision two of this section shall not apply to (a) the use of a mobile telephone for the sole purpose of communicating with any of the following regarding an emergency situation: an emergency response operator; a hospital, 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, or (c) the use of a hands-free mobile telephone.

4. A violation of subdivision two of this section shall be a traffic infraction and shall be punishable by a fine of up to one hundred dollars.

 

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