Before a driver can be convicted of using a "portable electronic device," the prosecution has to prove the device was actually a "portable electronic device" as the statute defines it — not just any gadget that happened to be in someone's hand. A 2017 Appellate Term decision, People v. Ingber, shows that this threshold question can be a complete defense on its own, before the case ever gets to whether the driver was "using" anything.
A Dictation Recorder, Not a Phone
A police officer testified that he saw Ingber driving with an electronic device held 12 inches from her mouth, speaking into it. She admitted she had been dictating into an Olympus DS-25A digital voice recorder while driving, and was convicted of violating VTL § 1225-d. The trial court found the recorder fell under the statute's "catchall" category: "any other electronic device when used to input, write, send, receive, or read text for present or future communication."
Case on Point
The Appellate Term reversed and dismissed the charge, holding that the prosecution had failed to prove the dictation recorder was a "portable electronic device" under VTL § 1225-d, because the device did not display, send, or receive text, and its sole established function was storing spoken audio for later playback.
People v. Ingber, 58 Misc. 3d 49 (App. Term, 2d Dept., 9th & 10th Jud. Dists. 2017)
Why "Text" Was the Whole Case
The Appellate Term's reasoning turned entirely on statutory language. VTL § 1225-d(2)(a) lists specific devices — phones, PDAs, laptops, pagers — and then adds a catchall for "any other electronic device" used to "input, write, send, receive, or read text." The court read that catchall closely: the word "text" is what all five verbs act on. A device that only records and plays back audio doesn't input, write, send, receive, or read text at all, no matter how similar it might look to a phone in a driver's hand.
Because the prosecution offered no evidence the recorder displayed, sent, or received text of any kind, the court found the device simply fell outside the statute's definition. That made the question of whether Ingber was "using" it, in the sense the statute separately defines, irrelevant — the case failed at the threshold.
Key Takeaway: VTL § 1225-d only reaches specific categories of devices, plus a catchall limited to devices that handle text. The prosecution has to prove the actual device in question fits the statutory definition — a voice recorder, and potentially other audio-only devices, may not qualify at all.
Warning: This defense turns on what the device can actually do, not what it looks like. A smartphone used only to make a call, for instance, is separately covered under VTL § 1225-c — this gap in § 1225-d doesn't put phone calls outside the law, just certain non-text audio devices outside this particular statute.
A Defense Worth Raising Early
Ingber is a reminder that a device charge isn't automatically about behavior behind the wheel. Before conceding that a device counts as a "portable electronic device" under VTL § 1225-d, it's worth asking exactly what the device does, whether the record actually shows it, and whether the prosecution can prove that element at all.
Ticketed Under VTL § 1225-d for a Device That Isn't a Phone?
The statute only covers specific kinds of devices, and the prosecution has to prove yours qualifies. Find out whether your case has this defense available.
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