Cell Phone Violations

New York State prohibits the use of cell phones and/or mobile devices while driving. New York State Vehicle and Traffic Law Sections 1225(c) and 1225(d) address cell phones and mobile devices, respectively. Drivers are not allowed to use a cell phone to make or receive a call while their vehicle is in motion and they are not allowed to text or use a hand held device in any other way while their vehicle is in motion. Drivers are permitted to use their phones with a hands-free device. There is a rebuttable presumption that a person who is observed with a cell phone held to his/her ear is in violation of the statute. The constitutionality of this law has been unsuccessfully challenged.

Cell phone tickets are very difficult to beat in court, because the officer only needs to testify that he saw the driver with a phone to his/her ear while he/she was driving and the burden shifts to the driver to prove otherwise. There are a few defenses. For one thing, the car does have to be in motion. A driver, but not a commercial driver, is allowed to use his phone while stopped at a red light. Even though this is so, it is still a bad idea to talk on a cell phone without a hands-free device while driving. Many officers don't even know that drivers are allowed to use their phone while stopped, and officers will often contend that your car was in motion, even when this may not be the case. It is also important to note that commercial drivers are not permitted to use their hand-held phone or mobile device even when stopped.

Outside of New York City, cell phone tickets can usually be successfully plea-bargained. However, in New York City, the Traffic Violations Bureau (TVB) does not permit plea-bargaining. This is, in my opinion, deeply unfair and a possible violation of the US and NYS constitutions. However, if you receive a cell phone or mobile device summons in New York City, your only two choices are to plead guilty or to plead not guilty and have a hearing. Despite the plea-bargaining restrictions, a lawyer can still help in New York City. While cell phone tickets are difficult to win, they can be successfully defended. Experienced traffic lawyers can often delay these summonses for a long time and seek to have the summons dismissed in the event a police officer misses a court date. Additionally, there are some valid defenses which can be presented. Due to the serious penalties which accompany these violations, pleading guilty and paying them is almost certainly a bad idea.

The penalties for using a cell phone and/or texting while driving are serious. For a first offense, the fine ranges from $50 to $200. For a second offense within 18 months, the fine ranges from $50 to $250, and for a third offense within 18 months, the fine ranges from $50-$450. There is also an $88 or $93 surcharge for each violation, depending on whether the summons is returnable to TVB or to a local justice court. In addition, for each offense, the DMV assesses 5 motor vehicle points. Since the DMV's Driver Responsibility Assessment kicks in once a driver has 6 points in an 18 month period, a conviction for a cell phone violation can be very costly. Insurance providers also will often increase their premiums based on points assessed. I take these violations seriously and always do my best to either successfully plea bargain cell phone violations, when possible, or fight them, when necessary.

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