On May 31, 2013, The New York State Legislators put into effect new penalties for cell phone use and texting. First the legislature raised the motor vehicle points for conviction for using a portable electronic mobile device to send or receive a text message or make a phone call while driving to 5 points. The new point system is now the same as a conviction of a misdemeanor of reckless driving (VTL §1212) or passing a stopped school bus (VTL §1174). You get more points for a cell phone conviction then for leave the scene of a personal injury accident (VTL §600). New York State now considers cell phone conviction worse than speeding up to 20 mph over the limit. Such large points On conviction of a cell phone use while driving also causes a substantial insurance premium increase. If a motorist has existing points on their license in 18 months prior to the cell phone ticket, the new 5 point accrual will trigger New York State Department of Motor Vehicles mandatory driver safety assessment. This is a least $300 in addition to Court fines and surcharges.

The Court fines for texting/cell phone violations run from $50 – $150 for the first offense to a maximum of $400 for a third subsequent cell phone violation within 18 months plus an additional $85 surcharge.

If the driver has a junior or probationary use privileges, they can get their license suspended if convicted of a cell phone/texting violation. 60 days suspension for a first conviction and 6 months revocation for subsequent conviction within 6 months in addition to the 5 points on their license.

In 2011, New York State Department of Motor Vehicles claimed that texting while driving accidents have increased 143% from 2005 to 2011. In 2011, DMV records indicated that there were 25,165 fatal or personal injury accidents caused by texting or distracted driving even when the DMV penalties increased from 0 points to 2 points to 3 points. These point increases had not deterred texting or cell phone use while driving. Now that the penalties have been raised to 5 points, police have been increasing the number of tickets issued for texting while driving. Between 2011 & 2012, there was a 234% increase in the tickets issues for texting while driving.

In an excellent article in The Westchester County Bar Association Newsletter of February, 2014, Michael J. Palumbo, Esq. sets forth the statutes and elements of cell phone and texting violation for phone call prohibition. He points out New York VTL §1225-c and New York VTL §1225-d control cell phone prohibition and texting prohibition. NY VTL §1225(c)(2) states “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”. Palumbo points out the elements for conviction or defense (1) operated a motor vehicle (2) on a public roadway (3) while using a mobile telephone and (4) engage in a call while the vehicle is in motion. Thus, a ticket given (in a parking lot) not a public highway would be invalid as would a ticket issued while the vehicle is stationary (at a traffic light on in a traffic jam. VTL §1225(c)(1) defines use of a cell phone as “holding a mobile telephone to or in the immediate proximity of the users ears” This can be rebutted by evidence showing the operator was not engaged in a call (i.e. records showing no use during the period they were ticketed). VTL §1225(2)(b) define immediate proximity of the ear as “that distance as permits the operator of a mobile telephone to hear telecommunications transmitted over such mobile device telephone, but shall not require physical contact with the operator’s ear”. VTL §1225(c)(1) and VTL §1225(c)(1)(f) defines engaged in a call as “talking into or listening on a hand held mobile telephone but shall not include holding a mobile phone to activate or deactivate or initiate a function of such telephone” (to shut off or turn on a cell phone in not “engaged” in a call).

Texting prohibition VTL §1225(d)(1) states “no person shall operate a motor vehicle while using a portable electronic device while such vehicle is in motion”. Operating a motor vehicle unlike for making a call does not have to be on a public highway. You can get a texting violation in a parking lot or on a private road. You have to use a portable electronic device while the vehicle is in motion. Thus, making a phone call or texting while stationary in traffic is permitted. VTL §1225(d)(2b) defines use of a portable electronic device as “holding a portable electronic device while viewing, taking or transmitted images, playing games or for the purpose of present or future communications: performing a command or request to access a world web page, composing, sending, reading, viewing, accessing, browsing, transmitting, saving or retrieving e-mail, text messages, instant messages or other electronic data”.

All the police have to show at trial is that the motorist held a portable electronic device “in a conspicuous manner”. According to Mr. Palumbo, it is easier to get a conviction under VTL §1225(d)(1) – texting than it is to get a conviction under VTL §1225(c)(2a) – cell phone use. The anti-texting while driving prohibits merely holding a portable electronic device while using it.

In response to the alarming increase in cell phone or texting use, the legislature has (1) added to the penalty points by the DMV to 5 points (2) increased fines and insurance costs once conviction and for junior or probatory license holds suspension or revocation of their driving privileges.

New York State has taken a strong and decisive stand against cell phone use or texting while driving.

If you, or someone you know, have been injured by a cell phone or text user while driving, contact the law firm of Dominick J. Robustelli & Associates, PLLC at (914) 288-0800.

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