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How to (Possibly) Avoid a Cell Phone Ticket in New York

cellphone-driving1In this post, I am speaking in my personal capacity, and not in my capacity as an employee of the law firm. I want to offer my theory regarding how the NY Cell Phone statute should be interpreted narrowly so as to allow one to use the speaker phone feature of a phone while holding it in the vicinity of the chin. And I would like to illustrate this theory through a personal anecdote.

Ever since I read New York’s anti-cell-phone-while-driving law, I had a hankering to get pulled over so that I could put my law-school-acquired statutory construction skills to good use. For good measure, I xeroxed a copy of the mobile phone statute and kept it with me in the car just in case.

My wish came true a few months ago. I was holding the phone in my hand. It was on the “speaker phone” setting and I was holding it an inch or two below my chin. I was pulled over by a nice Nassau County police officer. After surrendering my license and proof of insurance, he told me that he was going to give me a ticket for talking on the cell phone. I asking him if, since he’d already decided to give me the ticket anyway, I could explain to him why I thought I didn’t violate the statute. Out of a sense of amusement, I think, he gave me the go-ahead.

So I whipped out the copy of the New York VTL (Vehicle and Traffic Law), § 1225-c that I had prepared for just such a moment and I showed him the pertinent parts of the statute that you can read here:

§ 1225-c. Use of mobile telephones.
1. For purposes of this section, the following terms shall mean:

(c) “Using” shall mean holding a mobile telephone to, or in the immediate proximity of, the user’s ear.

(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. (These words were just deleted by the NY State legislature on March 6th.)
(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.
(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…

At first, he argued, “Were you using a hands-free device or not?!”

I retorted that the statute does not require someone to use a hands-free device. Rather, in order to violate 2(a), the actual prohibition in the statute, two elements must be present for the purposes of my case. One has to be (1) “using” a mobile phone and (2) “engag[ing] in a call.” Subsection 1 of the statute defines “using” as “holding a mobile telephone to, or in the immediate proximity of, the user’s ear.” And it defines “engage” as “talking into or listening on a hand-held mobile telephone.”

In my case, while the second element may have been present since I was talking to my father on the phone, the first element was absent. The phone was not “to, or in the immediate proximity of, [my] ear.” It was in the vicinity of my chin, but not my ear! One cannot violate a criminal statute unless the state can prove all elements of the violation, and because the first element was absent in my situation, I did not violate the statute.

The officer responded that what I was saying wasn’t true. It didn’t mean that it had to be by my ear. It just meant that I was in violation merely by holding the phone. In the alternative, he argued that the phone’s position below my chin should also be considered “in the vicinity of” my ear.

I responded that I didn’t think that could be true. If the legislature wanted to prohibit all calls where the cell phone is in one’s hand, it could have left out the definition of “using” in subsection 1, thus leaving only the definition of “engage in a call” as the only operative part of the statute. Then, the mere act of being on a phone call while driving would have been prohibited.

Alternatively, the legislature could have defined “using” as “holding the phone in the user’s hand” without any reference to proximity to the ear. Obviously, since they inserted the language about “proximity to the ear,” they intended only to prohibit calls where the phone is right by the driver’s ear. Not only that, but the statute requires the phone to be in the immediate proximity of the ear, and not merely in the “proximity” of the ear, thus requiring that the phone actually be extremely close to (even if not touching) the ear. Perhaps they even inserted this language specifically to indicate that they were permitting the use of cell phones with the “speaker phone” feature, like mine.

The officer vehemently disagreed with me but nevertheless said that he would not give me the ticket. (!!!) I think he realized that I might take this to trial and didn’t want to be cross-examined by this over-eager, Perry-Mason-Wanna-Be law student. Yay!

Incidentally, my fourth grade daughter made the policy argument that since the reason for the statute is to prevent distracted driving, that perhaps I shouldn’t even use the speaker phone while driving in the spirit of the reason for the statute, which is probably the biggest question on my statutory construction argument.

Picture courtesy of HT nom de plum.

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