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Five Winning Arguments Against a § 1225(c) Cell Phone Ticket in New York

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Written By 
Last updated 
July 5, 2021
man texting while he is driving

The New York Department of Motor Vehicles reports that in 2019 alone, the state saw 71,059 cell phone tickets issued. Though these tickets comprised just 2% of all traffic tickets issued in 2019, cell phone usage has become a pervasive part of modern society, meaning many motorists are likely to run afoul of New York’s “talking on the phone while driving” laws, even if most people are not ultimately ticketed. While those unlucky few who are ticketed face fines and points on their license, a ticket does not have to involve a conviction and penalties. Our dedicated, experienced attorneys are adept at successfully defending against cell phone tickets, a primary reason why Rosenblum Law is considered one of the premier traffic ticket defense law firms in  New York. Our analytical approach to successfully defending our clients against cell phone tickets is illustrated by the five prominent cases below, featuring winning arguments against a § 1225(c) cell phone ticket.

VTL § 1225(c): New York’s “Using a Mobile Telephone to Engage in a Call While Driving” Law

Offense Details:

  • V&T Code: NY Veh & Traf L § 1225(c) (2019)
  • Designation: Traffic Infraction
  • General Rule: 
    • No person shall operate a motor vehicle upon a public road while using a mobile telephone to engage in a call either (1) while such vehicle is in motion, OR (2) while temporarily stationary because of traffic, a traffic control  device, or other momentary delays
  • Exceptions:
    • When one’s vehicle is lawfully stopped on the side of the road
    • When one uses a mobile telephone for the sole purpose of emergency communication (defined in this section)
    • When one is a police officer, firefighter, etc. in performance of their official duties
    • The use of a hands-free mobile telephone
    • Holding a mobile telephone to  activate, deactivate or initiate a function of such telephone
  • Presumption:
    • An operator of any 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
    • Rebuttable by  evidence tending to show that the operator was not engaged in a call

Penalties:

  • First offense: $50 – $200
  • Second offense (if within 18 months of first offense): $50 – $250
  • Third offense (if within 18 months of first and second offenses): $50 – $450
  • Surcharge: up to $93
  • Points on one’s license: 5

1. Burden of Proof: People v. Demarco

After being involved in a two-car traffic accident with a truck, Andrew Demarco was charged with violating VTL § 1225(c), a law prohibiting motorists from operating a motor vehicle on a public road while using a mobile telephone to engage in a call. At trial, the police officer who ticketed Demarco testified that they had not witnessed Demarco’s cell phone usage while driving. They only learned of it at the scene of the accident when Demarco admitted to them that he hit the truck while attempting to pick up his ringing phone. Demarco disagreed with the officer’s recollection of events, claiming instead that he had only tried to push a button on his steering wheel to decline the incoming call. The trial court convicted Demarco, a decision he appealed to a higher court.

The appellate court overturned Demarco’s conviction and dismissed the case because his conviction was unsupported by the evidence. They observed that in a prior case, People v. Wells, the court said that to convict someone under VTL § 1225(c), the State must show that the accused driver was talking on the phone while their vehicle was in motion. In Demarco’s case, the State had at best established that he received a call while driving, at which point he physically grabbed his telephone to answer or decline it. The State failed to establish that Demarco held his phone to his ear, let alone that he actually talked on the phone. Furthermore, VTL § 1225(c) includes an exception allowing one to hold their phone while driving to “deactivate, activate, or initiate a function of such telephone.” For these reasons, the appellate court decided that what the State had proved at trial was not enough to convict Demarco of the charged offense.

This case raises two interesting aspects of the law: exceptions and the heavy burden of proof in criminal cases. First, laws often involve various exceptions. These exceptions can be explicit or can be implied by limits that the law places on the legal definitions of certain words. Demarco’s attorney expertly argued that what his client did was covered by VTL § 1225(c)’s exceptions. An explicit exception allowed Demarco to grab his phone to answer or decline the phone call. There was also an exception implied by the limited definition of “engaging in a call,” which was said to mean talking on the phone while holding the phone to one’s ear. This case also shows how difficult it is for the State to prove the accused driver is guilty “beyond a reasonable doubt.” Here, the State had to prove not only that Demarco physically interacted with his telephone while driving, but that he talked on the phone while holding it to his ear, a more difficult standard to satisfy.

2. Rebuttable Presumption: People v. Ferguson

Christopher Ferguson was ticketed when a police officer observed him holding his cell phone to his left ear while making a left turn. The officer testified to this at trial, and Ferguson was convicted of violating VTL § 1225(c), a law prohibiting driving while talking on a cell phone. At trial, Ferguson had entered into evidence copies of his phone bill, showing that he had not made nor received a call at the time the officer had claimed to have observed him talking on the phone while driving. After being convicted despite this evidence, Ferguson appealed his conviction to a higher court, claiming it was unsupported by the evidence.

The appellate court began by examining VTL § 1225(c). They noted that it prohibits talking on the phone while holding one’s phone to their ear while driving. They also pointed out that § 1225(c) includes a “rebuttable presumption,” meaning something that is assumed to be true based on the presence of certain circumstances but can be disproved by evidence. The “presumption” under § 1225(c) is that one holding a cell phone to their ear while driving is engaging in a phone call. Since Ferguson was holding his cell phone to his left ear while driving, the law permits the assumption that he was engaged in a phone call at the time. However, this can be disproved by evidence. By providing his phone bill as evidence that he was not talking on the phone at the time and by further proving he only owned the one cell phone with one cellular provider, Ferguson successfully “rebutted” the presumption that he was engaged in a phone call. Ferguson had therefore disproved the State’s claim that he had broken the law. For this reason, the appellate court overturned his conviction and dismissed the case.

This case illustrates an important feature of New York’s cell phone ticket statutes, the “rebuttable presumption.” The law uses this concept as a way of simplifying and making more realistic the standard of proof. Rather than forcing the State to prove Ferguson was talking on the phone, which would probably involve a court order asking for his phone company records and searching his cell phone, it is much more efficient for the law to presume that when one is holding their cell phone to their ear, they are engaged in a phone call. This is not unfair to the accused because the assumption can be disproved by evidence. The accused have the opportunity to provide evidence proving they were not engaged in a phone call, evidence they can access more easily than the State. Key to successfully defending against a cell phone ticket is a keen awareness of these aspects of the law and the ability to gather and present convincing evidence.

3. Charged With the Wrong Offense: People v. Fortini

Raina Fortini was driving her black Honda when a police officer observed her holding her phone towards the driver’s side window. The police officer suspected she was using it to take photos or videotape and ticketed her for a violation of VTL § 1225(c), a law prohibiting using a cell phone to engage a phone call while driving. At trial, Fortini agreed with the police officer’s version of events but claimed she was not guilty because VTL § 1225(c) does not prohibit videotaping or taking pictures with a phone while driving. The court agreed with her and her charges were dismissed.

In its reasoning, the court pointed to the difference between New York’s two cell phone ticket laws, VTL § 1225(c) and VTL § 1225(d). Though § 1225(c) prohibits using a cell phone while driving, “using a cell phone” is defined as talking on the phone while holding the phone to one’s ear. Fortini was not holding her cell phone to her ear nor engaging in a phone call. The police officer’s and Fortini’s individual testimony at trial suggested they agreed she was doing neither of these things. The court noted that Fortini likely had violated § 1225(d), which prohibits using a portable electronic device while driving and has a broad definition of “using a portable electronic device” that includes “activating or initiating a function” on one’s phone. The court concluded that using one’s cell phone to take pictures or video while driving actually falls under VTL § 1225(d)’s prohibition against activating or initiating a function on one’s phone while driving. The State simply charged Fortini with the wrong offense, so the charges were dismissed.

New York’s cell phone ticket statutes, VTL § 1225(c) and VTL § 1225(d), have distinct elements and exceptions, capturing different types of misconduct. This case demonstrates the complexity of the law and the value of reliable legal representation. Even police officers, those professionally responsible for enforcing the law, can be misled by the law’s elaborateness, as was the case here. An experienced attorney will draw from their deep understanding of the law to recognize such mistakes when they’re made, leveraging them to help their client escape liability.

4. Hands-free Exception: People v. Hudacek

Kathryn Hudacek was ticketed under VTL § 1225(c), a law prohibiting talking on the phone while driving, when a police officer observed her holding her hand to her ear and talking as she drove. At trial, Hudacek disputed the officer’s version of events, claiming she was only placing a hands-free, bluetooth-enabled earpiece on her ear at the time the officer had observed her hand near her ear. On this basis, she argued she was not guilty because § 1225(c) provides an exception for the use of a hands-free device to engage in a call while driving. During cross-examination, the officer admitted to not having seen a phone in Hudacek’s car during the traffic stop but asserted that the hands-free exception should not apply because her hands were on her bluetooth device. The trial court found Hudacek guilty, a decision she appealed to a higher court.

The appellate court ultimately sided with Hudacek, overturning her conviction and dismissing the charges. The court offered two reasons. First, the officer’s inconsistent testimony cast reasonable doubt on the prosecution’s case. The officer could not recall whether Hudacek engaged a phone call while holding a phone to her ear, conduct prohibited by law, or used a hands-free, bluetooth-enabled device to do so, which is permitted under law. Second, § 1225(c) provides an exception for hands-free devices and specifies the section does not generally apply to use of a phone to “activate, deactivate or initiate a function of such telephone.” Therefore, granting Hudacek’s claim that she was using a hands-free device, the act of placing that device to activate it is not prohibited.

This case shows the reach of an important exception to New York’s cell phone ticket laws, that for a hands-free mobile telephone. This would be similar to placing one’s Apple Airpods in one’s ears while driving. While technology will progress and evolve, the law’s underlying principles remain and adjust. Our attorneys, in analyzing clients’ cases, frequently put into practice their extensive knowledge of these exceptions, crafting arguments that frame clients’ conduct to fall within their reach. Other useful lessons that may be learned from this case are the fallibility of police officers and the importance of effective trial advocacy to a successful defense. It is doubtful that Hudacek would have won this case without having effectively cross-examined the officer, prompting him to admit to not recalling seeing a telephone.

5. Not a Public Highway: People v. Moore

David Moore was talking on his cell phone while driving his car in the parking lot of Community Corners, a shopping center in the Village of Cayuga Heights, New York, when his activities caught the attention of a police officer. The officer waited for Moore to pull out onto the main road before ticketing him for a violation of VTL § 1225(c), a law prohibiting motorists from talking on the phone while driving. At trial, the officer testified that they did not observe Moore holding his cell phone to his ear and talking into it while he drove on the main road but only noted Moore talking on the phone as he drove through the parking lot.

In determining whether Moore was guilty of the charged offense, the court first considered whether one could be in violation of VTL § 1225(c) for talking on the phone while driving in a private parking lot. Community Corners is a privately owned shopping center, and the attached parking lot is similarly privately owned. The court focused on the text of the statute. VTL § 1225(c) frames the prohibited conduct as talking on the phone while driving on a “public highway,” which is essentially defined to include all types of public roads. The officer’s testimony established it was only clear beyond a reasonable doubt that Moore had talked on his phone while driving in the private parking lot and that it was not clear that he had done so on the public road. The court expressed frustration with the legislature’s failure to prohibit talking on the phone while driving in parking lots, since public safety is at stake there just as much as on a main road, but ultimately conceded that the provision does not apply to those driving in a private parking lot. Consequently, Moore’s charge was dismissed.

Beyond demonstrating the public versus private distinction baked into VTL § 1225(c), this case reveals two interesting points about the law. First, the text of the law as written is favored in modern American legal analysis. Courts will almost always begin their analyses with the text of the provision at issue, and if the text is clear and unambiguous, the analysis will often end with the court forced to give meaning to the legislature’s intentions as reflected by the text. Here, the court is forced to let Moore off the hook due to the text of the provision though they believe those who behave like Moore should be punished. Second, effective cross-examination at trial is vital. Much of the success of Moore’s defense in this case depended on the framing of the officer’s testimony. Effective cross-examination prompted the officer to reveal that he could not definitively recall observing Moore talking on the phone while driving on the public road.


Who Should I Contact if I Received a § 1225(c) Cell Phone Ticket? 

The various successful defenses featured demonstrate that receiving a cell phone ticket does not have to mean incurring fines and points on one’s license. There are numerous lines of argument that can successfully defend against a cell phone ticket and absolve accused motorists of liability. The expert attorneys at Rosenblum Law are well-versed in meticulously examining motorists’ cases and employing appropriate arguments in a compelling manner. If you’ve received a cell phone ticket, your best shot at avoiding penalties is to seek the counsel of the experienced traffic ticket attorneys at Rosenblum Law. E-mail or call 888-815-3649 for a free consultation.

Author Bio

Adam H. Rosenblum

Founding Attorney Of Rosenblum Law

Adam H. Rosenblum is an experienced and skilled traffic violations and criminal defense attorney. Mr. Rosenblum provides expert and aggressive representation to those facing points on their drivers’ licenses and the associated fines and surcharges.

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