Distracted Driving means Using a Cell Phone or Portable Electronic Device

Driving distracted is dangerous and in recent years, New York State has taken notice and has made the vehicle and traffic law more strict. Increased penalties for cell phone use and “texting” while driving apply to all drivers and include an increase from a 3-point to a 5-point assessment on the New York driving record for convictions for using a cell phone (NY VTL §1225c2a) or using a portable electronic device (NYC VTL §1225d).

For new drivers in their probationary period, a conviction for either distracted driving charge will result in a 60-day license suspension.

Under the law, “using”, as in "using a portable electronic device", has a specific definition and 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 under the “use of portable electronic device” law, the police officer need only see you hold something that looks like a portable electronic device. Proof of actual use is not required. 

Exceptions to the NY Distracted Driving Laws

Use of cell phone or electronic device may be lawful if the use falls into an exception:

• For calls, when the driver uses a “hands-free” device that allows you to communicate without the use of either hand.
• For electronic devices, when the device is affixed to the vehicle.
• For GPS, when the GPS device is attached to the vehicle.
• For emergencies, when the purpose of the phone call is to communicate an emergency to a police or fire department, a hospital or physician's office, or an ambulance corps.
• For official use, when operating an authorized emergency vehicle in the performance of official duties.

To talk on the phone while driving, you may with a “hands-free” device, such as a bluetooth device. It is not ever lawful to text or otherwise use a smartphone while driving. Even while stopped at a light or otherwise while temporarily stationary. If you want to use GPS, buy a mount for your car and leave leave the device mounted.

CDL Drivers and Cell Phone Laws

Many of our clients hold CDL licenses and their livelihood depends directly on their ability to drive. Here is what a CDL driver should know about the distracted laws to comply with the law and drive safely:

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

If you have been charged with using a cell phone while driving, please call us at (315) 364-1155 for a free consultation with one of our experienced traffic defense lawyers.