It is your right to plead “not guilty” and have your day in court. If you do not wish to pay for a lawyer you can attempt to fight the ticket on your own. However, unlike an experienced lawyer, you probably do not know the details or the laws, you don’t have relationships with prosecutors and judges and you might not have experience conducting trials.
The best way to fight a cell phone ticket in New York is to hire an experienced New York Traffic Lawyer who knows the law, has relationships with the prosecutors and judges and has a good chance at negotiating a reduction of the charges or conducting a powerful defense if the case goes to trial.
Adam Rosenblum has published a 50 page e-book on fighting a New York Cell Phone Ticket. If you would like a free copy Like our Facebook page.
NEW YORK VEHICLE & TRAFFIC LAW SECTION 1225-C READS:
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. § 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 not more than one hundred dollars.
Reading and understanding the facts of a statute does not come easy to most people; that’s where we lawyers come in. We are going to analyze the statute piece by piece so we can better understand it. It might send tedious but we’re going to learn a lot of useful information and erase possible defenses along the way, so let’s begin.
1225-C SECTION 1. DEFINITIONS
Before proceeding to “lay down the law” the statute must defines some terms so we know what it’s talking about.
(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. § 20.3.
Ok, Legislature, by now we know what a mobile telephone is; and we also know that we subscribe to get the cell phone service. However, with these definitions seem to exclude our calls made from devices other than mobile telephones like laptops and tablets using services such as Skypetm that are not governed by 47 C.F.R. § 20.3.
Thus, if you get ticketed for violating New York Vehicle & Traffic Law § 1225-c because you made a telephone call using a device other than a mobile telephone, it might be possible to argue that your conduct was not governed by this statute.
(c) "Using" shall mean holding a mobile telephone to, or in the immediate proximity of, the user's ear.
This is a very interesting definition. The implication of this definition is that the police officer or prosecution need not prove that you are actually engaged in a telephone communication while driving in order for you to be convicted of this offense. All that needs to be proven is that you were
(1) holding the phone to your ear; or
(2) holding the phone in the immediate proximity of your ear.
I suspect that the reason for this definition is that the Legislature realized how difficult it would be to prove that an individual was actually using the phone at the time the officer observed him or her doing so. Requiring the prosecution to subpoena cell phone records to prove that the phone was in use would simply be too burdensome. The flip side is that this makes it much easier for the prosecution to prove their case and creates quite a challenge for a person trying to defend himself or herself in court.
(d) "Hand-held mobile telephone" shall mean a mobile telephone with which a user engages in a call using at least one hand.
This definition tells us that the person accused of driving while using a cell phone must be operating a mobile phone with the use of at least one hand. The inverse of this (a hands-free phone) is defined in the following definition.
(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.
In my opinion, the wording of this definition is very confusing. In essence, what it says is that if the phone has a feature (whether it be internal or add-on) that allows a person to engage in a telephone call without the use of either of his hand, it is considered a hands-free mobile telephone. The reason why this definition is poorly worded is that if you read it literally it leads you to believe that virtually every cell phone on the market today would be considered hands-free. Think about it – when did you ever see a cell phone that doesn’t have a speakerphone built in? The statute even says explicitly that such a phone is considered hands-free even if you need to use your hands to initiate or deactivate a function of the phone (which is also the case with many hands-free devices – though they have a speakerphone feature built-in, you still need to use your finger to press the “Send” or “Call” button)! Keep this point in mind because we’re going to return to it in the section entitled Legal Arguments (below).
(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.
What this means is that in the eyes of the law you are only engaging in a call if you’re talking into or listening to the cell phone. Merely holding the phone or pressing one of its buttons is not considered “engaging in a call.” This is important because many individuals (myself included – see How I Beat My Cell Phone Ticket) have been ticketed for
cell phone use while merely holding a cell phone or pressing its buttons. The
statue clearly says that this conduct is not unlawful under the New York cell
phone statute. (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. This definition harks back to the term “immediate proximity” used in the
definition of (c) “using”. Remember, that under (c), a person is considered to
be “using” a cell phone while driving if she is holding a mobile telephone to,
or in the immediate proximity of, her ear. This definition explains that
“immediate proximity” of the ear means not that the phone has to touch the ear
but a distance that permits the user to hear a communication coming from the
phone. The problem with this definition is that it doesn’t factor in things like
the fact that certain phones can be turned up louder than others so the
definition of “immediate proximity” may vary from phone to phone. I wonder how
many judges would entertain a volume test in middle of a trial! Nevertheless,
this ambiguity might be able to be used to your advantage.
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