By: Adam H. Rosenblum Esq. | Last Updated:
Use of one’s electronic devices while driving is probably among the most commonly committed driving infractions. Whether checking an email at a red light or changing songs mid-drive, we are all guilty from time to time of using our mobile devices when our undivided attention should be paid to the road. For those unfortunate enough to be ticketed for such a common mistake, all hope is not lost! Rosenblum Law has knowledgeable attorneys that leverage their skills and deep knowledge of the law to successfully defend against various types of traffic tickets. Below you’ll find a list of five arguments our attorneys often use to help motorists escape liability for § 1225(d) cell phone tickets. But first we are going to cover the basics of what the offense is.
VTL § 1225(d): New York’s “Using a Portable Electronic Device While Driving” Law
- V&T Code: NY Vehicle & Traffic Law § 1225(d) (2019)
- Designation: Traffic Infraction
- General Rule:
- No person shall operate a motor vehicle upon a public road while using any portable electronic device either (1) while such vehicle is in motion, OR (2) while temporarily stationary because of traffic, a traffic control device, or other momentary delays
- 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 (as defined in this section)
- When one is a police officer, firefighter, etc. in performance of their official duties
- Holding a mobile telephone to activate, deactivate or initiate a function of such telephone
- A person who holds a portable electronic device in a conspicuous manner while operating a motor vehicle is presumed to be using such device.
- Rebuttable by evidence tending to show that the operator was not using the device within the meaning of this section
- 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. Device Not Covered by the Statute: People v. Ingber
Linda Ingber was driving her 2008 Toyota when she was ticketed by a police officer who later testified he had observed her talking into an electronic device which she held in her hand approximately twelve inches from her mouth as she drove. At her non-jury trial, Ingber confirmed the officer’s testimony, admitting that she had been speaking into a handheld recorder. She argued, however, that a handheld recorder was not a “portable electronic device” covered by the law she was accused of violating, VTL § 1225(d), which prohibits use of a portable electronic device while operating a motor vehicle. The trial court disagreed with Ingber’s interpretation of the provision and convicted her of the traffic infraction, levying a $200 fine. She challenged the trial court’s ruling by appealing the decision to a higher court.
On appeal, Ingber’s conviction was overturned, and the case was dismissed. The appellate court agreed with her interpretation of VTL § 1225(d). The provision defines a “portable electronic device” to include various devices, such as cell phones and laptops, as well as those devices falling within its catchall provision, which reads “any other electronic device when used to input, write, send, receive, or read text for present or future communication.” They reasoned Ingber’s handheld recorder could not be covered by the provision because it was not mentioned among the devices explicitly referenced and did not fall within the catchall provision. The State failed to prove Ingber’s recorder was capable of inputting, writing, sending, or reading text; the evidence suggested it merely recorded her voice.
This case demonstrates an interesting feature of a well-crafted legal defense. The law is open to interpretation, a fact that can be used by a talented defense attorney. Ingber’s successful defense turned on her attorney’s ability to convince the appellate court that a handheld recorder did not fall within the plain meaning of the law’s catchall provision. Here, the legislature could indeed have intended to exclude devices such as handheld recorders from VTL § 1225(d)’s reach. A defense attorney can protect their client from liability by taking advantage of unclarity in the law as written. This decision also makes sense as a matter of justice. The “principle of legality,” holds that a criminal law should be interpreted narrowly and only by its explicit terms because it would be unfair to hold someone criminally accountable for an offense without giving them prior notice that such conduct was criminal. Ingber was found not guilty in part because it would be unfair to punish her for driving while using a portable recorder if no law told her beforehand that it isn’t allowed.
2. Insufficient Supporting Deposition: People v. Delprete
Philip Delprete was charged and convicted with a violation of VTL § 1225(d), prohibiting use of a portable electronic device while operating a motor vehicle. Before his trial, Delprete asked the court to dismiss the charge on the basis that it was “jurisdictionally defective,” by which he meant that the documents laying out the charge against him were at the outset insufficient to sustain a conviction. In short, he felt the State did not provide enough information to show that he had committed the charged offense. The trial court denied his motion and he was ultimately convicted.
On appeal, Delprete challenged his conviction on the grounds that the trial court made a mistake in denying his motion. The appellate court sided with him, overturning his conviction and dismissing the case. The appellate court relied on the rule that when requested on time, the police officer must provide a supporting deposition, a document laying out the facts of the traffic stop leading to the charges. The facts contained in the deposition must give reasonable cause for the belief that the accused did what they were accused of. A supporting deposition with insufficient facts is reason to dismiss the ticket. The supporting deposition stated, “OP MV WHILE USING PORTABLE ELEC DEVICE,” presumably denoting “operating a motor vehicle while using a portable electronic device.” These words alone without any further details, such as the device used or the manner in which it was used, were deemed by the appellate court not being enough to support the charge against Philip.
This case is notable for the successful defense being based entirely on procedure. When considering a defense against a ticket, people usually focus on the alleged misconduct itself, such as proving they were only on their phone to look at the time or check their navigation. However, many cases are actually resolved on procedural grounds, a more technical aspect of the law. An experienced attorney has strong knowledge of procedure and the wide variety of available defenses. Delprete’s attorney’s keen awareness of procedural requirements helped him beat his cell phone ticket case without the need for any arguments about Delprete’s actual conduct that had prompted the officer to ticket him in the first place.
3. Rule of Lenity: People v. Riexinger
Alyssa Riexinger was charged with violating VTL § 1225(d), which prohibits motorists from using a portable electronic device while operating a motor vehicle. At trial, the police officer who issued the ticket testified they had observed Riexinger holding and looking down at a cell phone while driving. They then cited § 1225(d)’s rebuttable presumption. A rebuttable presumption is something that is assumed to be true based on the presence of certain circumstances but can be disproved by evidence. § 1225(d) allows the court to assume that one holding a portable electronic device in a manner visible to police is using the device they are holding. Riexinger explained that she was on her lunch break and merely looked down at her cell phone to check the time. She supported this explanation with evidence of her car clock being broken and phone records demonstrating that she had not texted nor called anyone at the time the officer observed her.
The court began by examining the text of VTL § 1225(d). The statute prohibits using a portable electronic device while driving and defines “using” as “holding a portable electronic device while viewing, taking or transmitting images, playing games, or composing, sending, reading, viewing, accessing, browsing, transmitting, saving or retrieving email, text messages, or other electronic data.” The court concluded Riexinger could not be guilty because her act of checking the clock on her phone while driving is not explicitly included in the statute’s text, and “criminal statutes must be strictly construed.”
This case is interesting primarily because the decision is based on a criminal law concept called the “rule of lenity.” This concept essentially means that when a criminal law is vague, the court should interpret the law to favor the person who is being accused of violating the offense. Here, the fact that the act of looking at one’s phone while driving to look at the time was not explicitly mentioned in the text of the statute led to Riexinger being found not guilty. One could argue that she was guilty because looking at the time on one’s phone while driving can fit within the statute’s language, as it could be interpreted as “viewing… images” or “viewing… other electronic data.” However, the “rule of lenity” ensures these interpretations don’t win out. Once again, these arguments are often made by attorneys with knowledge of the norms of legal practice and judicial decision making.
4. Charged with the Wrong Offense: People v. Scanlon
Matthew Scanlon was ticketed for a violation of VTL § 1225(d), a law prohibiting using a portable electronic device while driving, when a police officer observed him simultaneously driving a commercial vehicle and talking into a cell phone that he held to his right ear. Early on in Scanlon’s trial, his attorney filed a motion requesting that the case be dismissed, for he believed Scanlon had been charged under the wrong statute. He argued that § 1225(c) was the proper statute for the misconduct of which Scanlon was accused, talking on the phone while driving. He went on to point out that § 1225(d) never explicitly mentions talking on the phone as a prohibited activity and that to read it in this way would make § 1225(c) unnecessary because there would then be two laws prohibiting the same conduct. The court agreed with Scanlon’s attorney and dismissed the charges.
This case provides a good example of an important legal practice called “statutory construction”. An important role of the courts is to interpret the law. A successful criminal defense often capitalizes on ambiguity in the law. Here, Scanlon profited off § 1225(d)’s ambiguity and the police officer’s mistake in charging him under the wrong statute. Scanlon’s attorney expertly argued why § 1225(d) should not be interpreted to cover Scanlon’s conduct and why § 1225(c) was conveniently the more appropriate statute. Remarkably, the defense centers not around denying any wrong but consists of pointing out a procedural mistake preventing the court from punishing Scanlon.
5. Insufficient Evidence: People v. Goldstein
A police officer issued a cell phone ticket to Seth Goldstein, whom he suspected of texting while driving, a violation of VTL § 1225, which prohibits using a portable electronic device while driving. At trial, the officer testified that he had observed Goldstein looking down at his phone, which was held at steering wheel-height, and that Goldstein was using his hands to operate it. At the time of this observation, Goldstein was stopped at a red light. The officer went on to explain how he followed Goldstein and that when he pulled him over, Goldstein’s phone was in his lap. Goldstein did not deny using his phone while stopped at the red light. However, he explained that he was not texting but was only attempting to activate his phone’s bluetooth capability. The officer concluded that Goldstein continued to text while driving after the light turned green, while Goldstein maintained he activated the bluetooth while at the red light and then stopped using his phone.
The court credited Goldstein’s testimony as more convincing, feeling the officer’s testimony had failed to establish beyond a reasonable doubt that Goldstein had continued to use his phone when he resumed driving after stopping at the red light. The court also expressed doubt as to whether activating one’s bluetooth would amount to “using” one’s portable electronic device within the meaning of VTL § 1225(d). Consequently, the court concluded Goldstein was not shown to have used his phone while his vehicle was in motion, and for this reason, they dismissed the charge.
It’s important to note that VTL § 1225(d) has since been amended to prohibit use of a portable electronic device by a driver both while their vehicle is in motion and while temporarily stationary, such as at a traffic light. Nevertheless, this case is a valuable example of the nature of the “beyond a reasonable doubt” standard of proof. In a criminal case, the burden of proof is said to rest with the prosecution, meaning the accuser is responsible for proving that the accused committed the charged offense. The standard of proof requires the accuser to prove the charged offense beyond a reasonable doubt. Here, the State was unable to convict Goldstein because the police officer’s recollection of the events was not enough to prove beyond a reasonable doubt that Goldstein had used his phone while his vehicle was in motion. It is vital to obtain the services of a qualified attorney when defending against a criminal charge, no matter how big or small. The best criminal defense attorneys are experts at casting doubt on the proof offered by the prosecution, using techniques such as cross-examination. Moreover, attorneys prove quite skilled at exposing the mistakes of police officers, a factor often central to a successful defense.
Who Should I Contact if I Received a § 1225(d) Cell Phone Ticket?
While traffic tickets at first appear commonplace and insignificant, actually receiving one exposes motorists to the complicated and uncertain procedures they can entail. As demonstrated by the above cases, regardless of culpability, one is not always legally liable, and it is not necessary to accept penalties just because one has been issued a ticket. The first and most consequential step in successfully defending against a cell phone ticket is contacting the renowned attorneys at Rosenblum Law, a premier traffic ticket defense law firm. E-mail or call 888-815-3649 for a free consultation.