Distracted Driving Means Using a Cell Phone or Portable Electronic Device

Driving distracted is dangerous, and New York State has made its Vehicle and Traffic Law strict to combat it. The penalties for cell phone use (VTL § 1225-c) and "texting" or using a portable electronic device (VTL § 1225-d) while driving apply to all drivers. Recently, New York implemented an increase from a 5-point to a 6-point assessment on a driving record for convictions of these offenses.

Under the law, “using” a portable electronic device has a specific definition. It means “holding a portable electronic device while viewing, taking or transmitting images, playing games, or composing, sending, reading, viewing, accessing, browsing, transmitting, saving or retrieving e-mail, text messages, or other electronic data.”

Basically, anything you can do with a smartphone is considered “using” and is prohibited. To be charged, a police officer need only see you holding something that looks like a portable electronic device. Proof of actual use is not required, as holding the device creates a rebuttable presumption of use.

Penalties and Fines

In addition to the 6 points and potential Driver Responsibility Assessment fees, fines for these violations are tiered based on prior offenses within 18 months:

Exceptions to the NY Distracted Driving Laws

Use of a cell phone or electronic device may be lawful if it falls into one of these exceptions:

• Hands-Free: Using a device that allows communication without the use of either hand.
• Affixed Devices: For electronic devices, when the device is affixed to the vehicle.
• GPS: When the GPS device is attached or mounted to the vehicle.
• Emergencies: Communicating an emergency to a police or fire department, a hospital, physician's office, or ambulance corps.
• Official Duties: Operating an authorized emergency vehicle in the performance of official duties.

To talk on the phone while driving, you may use a hands-free device, such as Bluetooth. It is never lawful to text or otherwise hold a smartphone while driving—even while stopped at a red light or temporarily stationary in traffic. If you want to use GPS, buy a mount for your car and leave the device mounted.

CDL Drivers and Cell Phone Laws

Many of our clients hold CDL licenses, and their livelihoods depend directly on their ability to drive. Commercial drivers face stringent requirements under the law. Here is what a CDL driver should know:

• Your motor carrier must not allow or require you to use a cell phone or portable electronic device while driving.
• A mobile telephone will only be considered “hands-free” if you can dial or answer by pressing only a single button. Purchase an easy-to-use hands-free device and program it accordingly.
• You may not make a phone call or use an electronic device while at a light or temporarily stopped in traffic. Driving is not just moving; essentially, whenever you are in your vehicle, take care not to use your phone.
• If you hold a phone in the vicinity of your ear, you will be presumed to be making a call. An officer only needs to see something that looks like a phone next to your ear.
• If you are seen holding a portable electronic device, you are presumed to be using it. For example, if you are stopped at a light and pick up an electronic device, you may be charged.