New York Cell Phone Tickets
New York is well known for its strict enforcement of its law prohibiting cell phone use on the road. These New York Cell Phone tickets carry 5 points and can cause insurance rates to increase dramatically. The law prohibiting the use of cell phones on the road in New York is codified at Vehicle and Traffic Law (VTL) 1225-c. The specific act prohibited in this law is making a call while a vehicle is in motion. There are three exceptions to this law, and a presumption of talking on the phone while driving that arises based on lifting a phone to one’s face. The maximum penalty for violating VTL 1225-c is a fine of $400.00, although in order to face the $400.00 fine one must be convicted of three separate instances of violating VTL 1225-c within 18 months. Lower level fines are less serious and judges have a lot of discretion in determining how expensive the fine should be.
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The first exception to VTL 1225-c protects people who make emergency phone calls to hospitals, the doctor’s office, the police, or the fire department. The second exception protects police and firemen who are using their phones within the normal scope of their duties. The third exception protects people who are using hands free devices to speak on the phone.
Hands free devices and Bluetooth activated cars are commonplace today, however, if a defendant is not able to provide proof of the use of a hands free device in court and a police officer saw a defendant hold their phone to their ear they will have a low chance of being able to rely on the exception for hands free devices to excuse their ticket under VTL 1225-c. VTL 1225-c creates a presumption that a person is speaking on the phone if a police officer observes them lift their phone to their ear. This presumption must be rebutted. In order to rebut the presumption evidence may include proof of the use of the hands free device, the hands free device itself (if possible), or a description of the car’s hands free computer program. In one case a defendant who was accused of using his phone while driving testified that he was in fact setting up his cell phone hands free device, but, the police would not listen to him or look at the hands free device before he was ticketed. The defendant did not bring the hands free device to court. He was convicted.
In another case, a defendant was accused of violating VTL 1225-c based on the presumption triggered by holding a phone up to his face. The defendant counter-argued that he was holding a wallet and the police officer was mistaken. The court ruled that this only mattered to the issue of weight of the evidence and the lower court that convicted him did not abuse its discretion. Additionally, when a lower court prohibited his attempt to introduce phone records to show he was not using the phone, because it was his father’s phone, that lower court was within its discretion to exclude the records because the defendant did not introduce evidence he was using his father’s phone at the time he was pulled over. This defendant’s conviction was upheld.
VTL 1225-c also offers some limited protections. These protections are given to commercial drivers and to cell phone owners. Commercial drivers cannot be forced to use a hand held cell phone by their employers as per this section. Cell phone owners also cannot have their phones forfeited or seized due to driving with while using a cell phone. These protections seem rather lackluster compared to the significance of the rebuttable presumption. That is why you need tough and smart representation in traffic court. Our lawyers can find the loopholes you need. Call us today for a free consultation.
If you or someone you love has been accused of driving while using a cell phone call our award winning New York traffic attorneys who will give you the aggressive representation you need to beat your traffic tickets and keep your driving record clean.