Talking on Cell Phone in New York

I got a ticket the other day in New York for talking on my cell phone while driving. I decided to look up the law and see exactly what is says. Below is the law and it clearly says that the vehicle must be in motion. I can prove that I was stopped at a red light and not moving when I was on the phone. Does anybody think this would actually hold up if I challenge the ticket? I don't think that being stopped at a red light and not moving would qualify the vehicle as being in motion.

If anymore information is needed please ask. Thanks.

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.

Were you talking on it before you pulled up to the red light?
Would you have continued to talk if the light turned green and you were allowed to proceed?
I suggest you get a hands-free earpiece for your cell phone.
Also, how were you planning to prove you were not talking on the phone while you were driving up to the light? And how about when you were stopped? I don't think someone's word will be good enough, unfortunately.

Just how did you intend to prove you were at a red light? (I'm just curious. Did you have a car full of nuns ready to testify on your behalf?)

{edit}
Heh - posted before the reply directly above this was here. Looks like we're all curious.

The cop was directly in front of me at the light. She can testify the light was red. I was not really thinking and answered the phone very quickly. I was in a work truck and my boss was calling me and I thought it might have been an important call. It was dumb to answer the phone with the cop immediately in front of me but as I said I wasn't thinking. I have the record of the call on my phone and it shows I was only on the phone for 15 seconds. At this particular intersection I know the light is longer than 15 seconds. Which shows that I could have answered the phone and hung up while stopped. I hung up the phone before the light turned green. As soon as I hung up the phone and continued to go through the interesectin the cop entered a parking lot and waited for me to pass and then came up behind me. She even said while talking to me that I picked up the phone while behind her. I may not have had a nun in the car but I did have a cop infront of me who hopefully will be honest. I do feel that with the police officers testimony and my phone records and observing the light that I can prove I was not moving while on the phone.

I am just worried that being stopped at a red light might somehow classify as a vehicle in motion. Also it states that it must be on a public highway. By no means was this road a highway. I don't really think that would hold up but let me know if you think its worth a shot.

"Public highway" in the VTL just means any road, paved or unpaved, open to the public, so that won't fly.

However, the "vehicle in motion" defense is unique, at least to me. The law was written with the intent not to make it illegal to pull over to make/take calls. However, the wording used, as you noted, would certainly appear to cover being stopped at a red light, presuming the entire call was conducted during the red interval.

A search of case law proved useless, as not only is this a rather new law, DMV ALJ opinions rarely get appealed and even those are rarely published. And "in motion" is not one of the terms defined within the statute.

So I think you might actually have a shot. If nothing else, the judge will probably be impressed if you come prepared. If the city records show say, a 45 sec. red light and cel phone records show a 20 sec. call, I'd make the argument you didn't violate the law.

So if you can get the cel phone records showing the length of the call, you'll need to also show the red light interval was longer than your call. You can get the records for a specific light through the DOT - call 311 and have them walk you through it. It may require a FOIL request or even a subpoena.

Thanks.

I have the phone call logged on my cell phone and took several pictures clearly showing the time of day, date, and length of phone call. I am also going to try to get my phone records and records from the person who called me. Do you think that photos of my phone taken with a digital camera would be alright or should I definitley get the phone records?

I was also thinking of just going back to the light next week at the same time the incident occurred and timing it for myself. But thanks for the advice on how to get the proper red light intervals.

I didn't think the public highway argument would work.

I was also thinking of the D.W.I. laws. I've heard of people getting arrested for just sitting in their cars on the side of the road with the key in the ignition. So I reviewed the law for this and it says "operating the vehicle." So that covers pretty much anything. The cell phone law does not say "operating the vehicle." The way I see it if you are drunk and in a car many different things can go wrong to harm yourself or others. If someone sober is in a static vehicle it would be extremely hard for them to cause harm. I did not drive irrationally while on the phone or propose a threat to anyone else. This law was indeed intended for people to be able to stop their car and safely operate their cellular phone. No where in the law does it state that the person operating the vehicle must be on the side of the road. If a person can not keep their foot on a brake pedal and watch for a red light to turn green while on their cell phone then they should not be driving. DO you think I would be able to relate this law to the D.W.I. laws (obvioulsy in a better and much more thought out argument than the one above)?

Anymore advice is greatly appreciated.

You can certainly point out the difference in the language between the two (the inference being that had the Legislature wanted people not to use cell phones while at red lights, they would have used the same language in the cell phone law as they did in the DWI statute). Whether that will get your ticket dismissed is another question entirely - who knows what those crazy DMV judges will do.

But for proof, paper records are the way to go. Digital photos, while better than nothing, are not that great, if for no other reason than I can Photoshop just about anything I wanted into one, making their reliability suspect.

Same goes for timing the red light yourself. It's better than nothing (could you videotape it?) but the City's own records showing the length of the light are infinitely better.

Not certain about NY, however, in WI, any vehicle not legally parked is considered a vehicle in transit.

ptlmejo said:

Not certain about NY, however, in WI, any vehicle not legally parked is considered a vehicle in transit.

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And since the writer and ticket are in NEW YORK, what the hell does your post about Wisconsin have to do with anything???

It's a general rule of thumb.

ptlmejo said:

It's a general rule of thumb.

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Which will get your thumbs severed on this forum.

BeliezeBreeze said:

Which will get your thumbs severed on this forum.

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...as our resident Supreme Court Justice JETX seems to so elequently point out...

For good reason - there's no "rule of thumb" like that here.