It was widely reported that the NYPD will be “cracking down” today on the use of cell phones by drivers without a hands-free device. According to NBC News “The 24-hour initiative will begin at midnight on Thursday, and will span across the five boroughs. Those caught using a hand-held device while driving will be fined $130, and as in the past, officers will be relentless and accept no excuses.”
A recent decision by the Appellate Term, Second Department, may provide a valid defense to many motorists caught in the ticket blitz. In that case, the defendant was convicted after a trial of driving her vehicle while using a mobile telephone (Vehicle and Traffic Law § 1225-c). The court overturned the motorist’s conviction and clarified several aspects of the applicable law:
1. The statute makes it unlawful for a person to operate a motor vehicle upon a public highway while using a mobile telephone to engage in a call while such vehicle is in motion (emphasis added).
2. Vehicle and Traffic Law defines a “hands-free mobile telephone” as “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” (emphasis in decision).
3. ” 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” (emphasis in decision).
According to this decision:
1. A motorist should not get a cell phone ticket if not actually driving.
2. A motorist should not get a ticket for holding a cell phone while dialing a number or hanging up, only for talking or listening while holding a phone.
As a practical matter, this means that you may hold the phone to dial a number, activate the speakerphone or Bluetooth device, place the phone down and talk.
You can read the decision here.
