Two sections of law that deal with the use of cell phones while driving are Vehicle And Traffic Law §1225-c.  Use of mobile telephones and Vehicle And Traffic Law §1225-d Use of portable electronic devices.

Each statute has its own specific terms and meanings. The statute itself defines various terms such as “mobile device”, “portable electronic device”, “using”, “hand-held mobile phone”, “hands-free mobile phone”, and “engaged in a call”.

Understanding each of these terms as defined in the statute and their applicability to mobile phone electronic portable device tickets is essential to an effective defense. Like any other charge, all of the elements of an offense must be proven by the People. Although the standard is much lower for traffic violations than for criminal charges, the People must still meet their burden.

An effective traffic ticket attorney should ascertain the unique facts and circumstances surrounding your cell phone ticket to determine if there is an applicable defense. A variety of issues can present the opportunity for a good defense.

By way of example issues such as the officer’s vantage point, the proximity of the phone to the driver, whether one was engaged in a phone call at the time of the officer’s observation, whether there was an emergency requiring an immediate response, or whether the vehicle was in motion may provide a defense to your ticket.

Also an effective traffic ticket attorney will have knowledge of and familiarity with relevant case law. For example in the case of People v. Alyssa Riexinger, 40 Misc. 3d 623; 968 N.Y.S.2d 832, the Town of Lockport Justice Court found that the driver who utilized her phone for the sole purpose of checking the time was not in violation of section 1225-d, use of a portable electronic device. At trial evidence of the defendant’s phone records were provided to the court showing that there was no activity, texting or otherwise at the time the offense allegedly occurred.

In the case of People v. Seth Goldstein, 36 Misc. 3d 1214(A); 2012 N.Y. Misc. Lexis 3380, the Village Of Kings Point Court held that a driver who was charged with “texting while driving in violation of vehicle and traffic Law section 1225-d was not guilty where he was at a stoplight looking at his phone to engage a hands-free piece.

The penalties for a violation of Vehicle And Traffic Law §1225-c use of mobile telephones and Vehicle And Traffic Law §1225-d use of portable electronic devices have increased within the last couple years. Not only have the fines increased substantially but now each of these offenses carry five points for a first offense.

Additional points within an 18 month period can result in the Department of Motor Vehicles imposing a costly driver assessment fee. Additionally the accumulation of 11 points will result in the suspension of one’s license.

An effective traffic ticket attorney should be able to implement creative ways to either negotiate or defend at trial a cell phone or texting ticket. Attorney Jason Henskee, Esq has utilized his clients phone records, handheld free devices, documents regarding the purchase of handheld free devices, vehicle capabilities such as hands-free technology in newer vehicles, and the lack of a supporting deposition in securing favorable dispositions on behalf of his clients.

Cell phone and texting while driving tickets are two of the more serious vehicle and traffic violations set forth in the vehicle and traffic Law. Having an attorney represent you in such cases usually results in a more favorable disposition.

Refer to Attorney Jason Henskee’s blog article posted March 2, 2016 entitled “why have a lawyer represent you for a vehicle and traffic ticket” for more information regarding the benefits of having a lawyer represent you for a traffic ticket.

If you’ve been charged with a Use of mobile telephone ticket or Use of portable electronic device ticket contact Jason C. Henskee, Esq. for a free consultation.


June 8, 2016



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