How to (Possibly) Avoid a Cell Phone Ticket in New York

March 26, 2009

cellphone-driving1In this post, I am speaking in my personal capacity, and not in my capacity as an employee of the law firm. I want to offer my theory regarding how the NY Cell Phone statute should be interpreted narrowly so as to allow one to use the speaker phone feature of a phone while holding it in the vicinity of the chin. And I would like to illustrate this theory through a personal anecdote.

Ever since I read New York’s anti-cell-phone-while-driving law, I had a hankering to get pulled over so that I could put my law-school-acquired statutory construction skills to good use. For good measure, I xeroxed a copy of the mobile phone statute and kept it with me in the car just in case.

My wish came true a few months ago. I was holding the phone in my hand. It was on the “speaker phone” setting and I was holding it an inch or two below my chin. I was pulled over by a nice Nassau County police officer. After surrendering my license and proof of insurance, he told me that he was going to give me a ticket for talking on the cell phone. I asking him if, since he’d already decided to give me the ticket anyway, I could explain to him why I thought I didn’t violate the statute. Out of a sense of amusement, I think, he gave me the go-ahead.

So I whipped out the copy of the New York VTL (Vehicle and Traffic Law), § 1225-c that I had prepared for just such a moment and I showed him the pertinent parts of the statute that you can read here:

§ 1225-c. Use of mobile telephones.
1. For purposes of this section, the following terms shall mean:

(c) “Using” shall mean holding a mobile telephone to, or in the immediate proximity of, the user’s ear.

(f) “Engage in a call” shall mean talking into or listening on a hand-held mobile telephone, but shall not include holding a mobile telephone to activate, deactivate or initiate a function of such telephone. (These words were just deleted by the NY State legislature on March 6th.)
(g) “Immediate proximity” shall mean that distance as permits the operator of a mobile telephone to hear telecommunications transmitted over such mobile telephone, but shall not require physical contact with such operator’s ear.
2.
(a) Except as otherwise provided in this section, no person shall operate a motor vehicle upon a public highway while using a mobile telephone to engage in a call while such vehicle is in motion…

At first, he argued, “Were you using a hands-free device or not?!”

I retorted that the statute does not require someone to use a hands-free device. Rather, in order to violate 2(a), the actual prohibition in the statute, two elements must be present for the purposes of my case. One has to be (1) “using” a mobile phone and (2) “engag[ing] in a call.” Subsection 1 of the statute defines “using” as “holding a mobile telephone to, or in the immediate proximity of, the user’s ear.” And it defines “engage” as “talking into or listening on a hand-held mobile telephone.”

In my case, while the second element may have been present since I was talking to my father on the phone, the first element was absent. The phone was not “to, or in the immediate proximity of, [my] ear.” It was in the vicinity of my chin, but not my ear! One cannot violate a criminal statute unless the state can prove all elements of the violation, and because the first element was absent in my situation, I did not violate the statute.

The officer responded that what I was saying wasn’t true. It didn’t mean that it had to be by my ear. It just meant that I was in violation merely by holding the phone. In the alternative, he argued that the phone’s position below my chin should also be considered “in the vicinity of” my ear.

I responded that I didn’t think that could be true. If the legislature wanted to prohibit all calls where the cell phone is in one’s hand, it could have left out the definition of “using” in subsection 1, thus leaving only the definition of “engage in a call” as the only operative part of the statute. Then, the mere act of being on a phone call while driving would have been prohibited.

Alternatively, the legislature could have defined “using” as “holding the phone in the user’s hand” without any reference to proximity to the ear. Obviously, since they inserted the language about “proximity to the ear,” they intended only to prohibit calls where the phone is right by the driver’s ear. Not only that, but the statute requires the phone to be in the immediate proximity of the ear, and not merely in the “proximity” of the ear, thus requiring that the phone actually be extremely close to (even if not touching) the ear. Perhaps they even inserted this language specifically to indicate that they were permitting the use of cell phones with the “speaker phone” feature, like mine.

The officer vehemently disagreed with me but nevertheless said that he would not give me the ticket. (!!!) I think he realized that I might take this to trial and didn’t want to be cross-examined by this over-eager, Perry-Mason-Wanna-Be law student. Yay!

Incidentally, my fourth grade daughter made the policy argument that since the reason for the statute is to prevent distracted driving, that perhaps I shouldn’t even use the speaker phone while driving in the spirit of the reason for the statute, which is probably the biggest question on my statutory construction argument.

Picture courtesy of expiredmeter.com. HT  nom de plum.

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81 Responses to “How to (Possibly) Avoid a Cell Phone Ticket in New York”

  1. Yankel Says:

    The intent of this law, as with Sen. Carl Kruger’s battle against iPod Oblivion (crossing a street with all sound blocked), is to save lives.

  2. Mike C. Says:

    You just had to tell this story, didn’t you?

  3. Jim Maloney Says:

    “This court takes judicial notice of the anatomical fact that the chin is in the vicinity of the ear. Therefore, the court finds that, as a matter of fact and law, a phone held in the vicinity of the chin is also in the vicinity of the ear.”

    (Good thing for you that the officer did not write the ticket and the case did not reach this court…)

    Maloney, J.


  4. Yankel, indeed. although statistically, I believe that it has been shown that there is no significant difference between use of a cell phone with or without a hands free device.

    Mike C., yeah I think I had to. :-)

    Jim, I would point out to the court the fact that just because A is close to B, and that B is close to C, does not mean that A is close to C… :-)

  5. joe Says:

    How about a first time visitor to N.Y.? A non resident?
    I got a ticket when I entered the state around the Buffalo area with no knowledge of this law. The cop said this is how they let people know is by giving them a ticket!? I said there are signs all over the road and toll booths to wear your seat belt, plane radar, have headlights and wipers on in rain, etc. Why no signs notifying about the cell phone? I asked for a warning he said no warnings?! Is this at all disputable and winable? Any loopholes for non residents? If I don’t pay will it go on my record and have my out of state license suspended? I have a nav unit with bluetooth and said I was using that but he said the phone was to my ear and I said I was itching my ear .. can I win this?


  6. Joe, unfortunately, the general rule is that “ignorance of the law is no excuse” and being from out-of-state or ignorant of the law won’t usually help you. That said, you have to look at the facts of your case and try to argue that whatever you were doing didn’t fit under the category of what the law prohibits. Our office doesn’t make appearances in the Buffalo area, so unfortunately, we wouldn’t be able to represent you there. Good luck!

  7. Mel H. Says:

    hello benjamin,

    i recently received a cell phone ticket. i was not talking on the phone, but was checking an address that is recorded on my cell. i held the cell phone nowhere near my face or ears. i tried to explain it to the officers, but they insisted that i was using my cell phone, that i should have pulled over. is it possible to argue this and win at the court, given the law’s definition? if i had been looking at a piece of paper, one hand holding it up (and not at the wheel), i suppose i would not get that ticket. thank you!


  8. I can’t give you legal advice, but as general information, why don’t you print out your cell phone bill. It will show the date and time of any calls you made and how long they were. You can plead not-guilty when you are arraigned (or do this in a hearing by male if the place where you got the ticket allows that) and bring the bill that will show that at the time listed on the ticket for when you received the ticket, you were not on a call. Good luck!

  9. M Says:

    Hi,

    I am visiting NYC from AZ.

    I got a cell phone ticket… also on speaker phone but on my hand….

    The officer wrote the wrong date… I was in AZ still… he backdated it a week.

    Can i get it off on this?

    And if i please not guilty… and then they find me guilty how much is the court fees?

    Thanks

    M

  10. Catarina Says:

    hello,

    I was recently pulled over for using my speaker phone by a nassau county cop. The officer told me that i was on the phone, that he saw the light and it was close to my ear therefore, i was on the phone.

    I explained to him that i had been on speaker phone and had just hung up and that was why he saw the light. He continued to say that he was not going to argue with me at which point i said im not arguing im just trying to explain.

    This was the 1st time i was pulled over and i think that a warning would’ve sufficed.

    I have a court date in august and i was wondering if there was anything i could say? Or if presenting this article could help me.

    thank you
    -Catarina


  11. Catarina,

    I’m not sure presenting this article would be helpful, but you should refernce the language of the statute that I linked to. As you saw in the article above, NY recently amended the law to include deactivating a phone after a call as one of the activities included in the definition of “engag[ing] in a call.” You can try to argue that you weren’t deactivating the phone at the time that the officer saw you, but that you were just holding it, if that’s what happened. As always though, this is not legal advice but rather just information. Good luck!

  12. Thea Says:

    Have you heard of the song that goes something like.. To Much Time on My Hands… but thanks for posting and I hope you had a good day after you totally made that cops day. I bet he will tell that story to some of his police officer buddies!!LOL

  13. Akiva Says:

    I like the story and the logic I also like your 4 year olds logic. Ironically, a Judge once “through the book at me” and said to the effect – “Laws are not formulated on a premise (i.e. a spirit of the law)” which is unlike your daughter’s comment.

  14. Jenny Says:

    I was glad to see this article, because I received a ticket today for the same thing (in Manhattan, where I come close to getting run over daily), and I’ve been hoping the “in the vicinity of the ear” part can get me out. I deliberately used speaker phone because I thought it was completely legal. Not only that, but I had BOTH HANDS on the steering wheel (with the phone loosely in my right hand), so it was absolutely nowhere near my ear. I’m not looking forward to it, but I’m definitely going to go downtown to fight it. Anyone who knows more about it, I’d love to know. The principle of it bothers me so much! If you can’t loosely hold a phone in your hand while holding the wheel, what’s next, a ban on picking up a water bottle while driving?


  15. I am glad nobody got hurt during your experiment. I see to many people doing whatever with their cellphone when they should be paying attention to the road.

  16. Wade Smith Says:

    I like Benjamin’s “vicinity of the ear” argument. I wonder if a phone were slipped into a case clipped to the vehicle sun visor would be legal? Strangely, out here in California, truckers are allowed to use push-to-talk devices, cb radios and cell phones while driving! I noticed one guy who was using his cb and cell at the same time…

  17. Anonymous Question Asker Says:

    Mr. Schlissel,

    If one gets a ticket for talking on a cell phone, can one use as a defense the fact that the officer observed the violation in Queens, followed me to Nassau, and then pulled me over and gave me the ticket there, outside his department’s jurisdiction?


  18. Mr. Schlissel answered:

    Unfortunately, that would not be a valid defense for two reasons.

    1) The “Peace Officer” doctrine says that a police officer who witnesses a crime, whether inside out outside of his or her regular jurisdiction, has the power to detain the person who commits the crime either during or after the crime is committed. Here, the officer saw you commit the crime in Queens, so, pursuant to his role as “Peace Officer,” he can pull you over in Nassau county when he gets the chance.

    2) The “Hot Pursuit” doctrine says thatan officercan pursue a person from onejursidictionto another if he’s pusuing you for a crime he saw you commit. But don’t let the “HotPursuit” title fool you. There is no requirement that the cop’s lights are flashing andthat you are actively fleeing the officer. Even following you, without his lights on, countsas “Hot Pursuit” as well.

  19. j.r. Says:

    Hey, why couldn’t the officer simply retort with “(g) “Immediate proximity” shall mean that distance as permits the operator of a mobile telephone to hear telecommunications transmitted over such mobile telephone, but shall not require physical contact with such operator’s ear.”

    Why wouldn’t that include the chin?


  20. j.r.,

    #1, The context indicates that the section you refer to was not intended to include the use of the speaker phone feature. If it were, it wouldn’t need to specify that “physical contact with such operator’s ear” wouldn’t need to be stated. The exception for hands free devices is another indication that the section you’re referring to is referring to non-speakerphone usage. That being the case, the “proximity” referred to hear would mean the proximity that would allow one to hear the phone using the regular, non-speakerphone, setting. Only in that context would there even be a thought that physical contact might have been required, thus requiring the statute’s exclusion of “physical contact” with the ear as a requirement.

    All the best.


  21. […] Schlissellaw. Marta el 18 Dic 2009 – 14:18 hablar por el móvil, manos libres, multas móvil, Multas […]

  22. Mark Says:

    Hi there,
    I got a ticket a couple days ago in Brooklyn for talking on the phone. It is extremely frustrating as I always make sure to keep the phone on speaker phone on my lap. When the cop pulled me over he didn’t ask me “was the phone call you were on an emergency phone call”. I tried explaining to him that i was on speaker phone, but he wouldn’t even listen to what i was saying and just screamed at me to give him my license and insurance without letting me politely ask him a couple of questions.
    My question is as follows, “did he fail to follow protocol by not asking me if it was an emergency call, and if yes, can that help me out in court?”
    I plan on bringing the case to court myself being that I was using the phone on speaker! Can someone please post a link to the above mentioned New York VTL statures? I would like to bring it to court saying the same thing you mentioned to the cop.
    Thank you for your help


  23. You will probably not have too much success with the protocol defense. If you were talking because of an emergency, then that is a specifically excluded situation and a defense, independent from whether the officer asks you about it or not. If you weren’t in an emergency, then the cop not asking about it probably won’t help you. There’s nothing in the statute that says they have to ask. In fact, they usually ask that so that when you say “no,” they’ll have you on the record making an incriminating statement, by negating that potential defense.

    Assuming the facts you wrote are complete, the phone-in-lap defense might be your best bet under the circumstances. I think there’s a link to the full text of the statute in the text of the post, though the relevant parts are already quoted in the post itself.

    Good luck!

  24. sk Says:

    Hello,

    I live in nj and recently received a ticket in nyc for using my cellphone as I was coming out of the midtown tunnel into queens. I did have the phone by my ear, however I was in the process of putting it on speaker and also had my headset with me in the car – it just wasn’t plugged into the phone. Having to choose between driving and simultaneously plugging the wire into my phone OR driving and using the phone on speaker, I chose speaker as the safer option. I tried explaining this to the officer, even showed him the earpiece as a sort of “good faith” gesture, but it was all to no avail. Now, normally, I never use my phone while driving, even with a headpiece b/c I think it’s distracting. The only reason I was on the phone was b/c my gps froze on me and given that I have ZERO sense of direction, I wanted to make sure I was going to right way to my brother’s house in LI. I’m not a fan of confrontation, but given that I’m generally a careful driver, had no intention of using the phone and had the headset just in case I did need to use the phone (indicating that my goal is to be careful and follow the law!), I feel like I should try and fight this ticket. I mean, shouldn’t intent matter???? Any thoughts?


  25. Intent doesn’t usually matter in the law unless the law specifically makes intent an element of a crime. The statute does make an exception for emergency situations, so you could definitely attempt to argue that your situation constituted an emergency. Good luck!

  26. Ashley Bienski Says:

    I live in Texas, where the law states that you can’t drive through a schoolzone while using a cell phone. Four other girls were in the car with me, and we were all talking to each other. Next thing I know, I get a ticket for violation of the cell phone law. Only thing was- I wasn’t on my cell phone. I have contacted my cell phone company to receive the call detail for that day as proof that I wasn’t on a call. My only question is should I go as far as to have all of the other girls print their cell phone records, too? I will be typing up a statement for them to sign with their contact information. Please help!

    NOT GUILTY!


  27. I can’t tell you about Texas’ law. Personally, I wouldn’t think everyone printing out their recrods as being necessary. If your name’s on the ticket and you can show a cell phone bill with your name on it showing you weren’t on the phone at the time of the ticket, I’d think that this would be enough. But I can’t give any legal advice. Good luck!

  28. Amy Says:

    Ok, I admit I just got caught using my cell phone while holding it up to my ear and making a call. However to the cop I flat out denied that I was using my phone… he said he wasn’t going to argue with me and gave me a ticket.

    I’d like to argue this and make the case that I was not using my phone and that he did not accurately see me in my car. I was driving about 35 mph but it was very dark outside and there was some ice/snow on my side window. What are my chances of convincing the court that he’s wrong?


  29. No idea. If you continue to plead not guilty the arraingment and conference phases, and take it to trial, it will just depend on who the judge finds more credible, your testimony or the officer’s.

  30. Lora Kew Says:

    Has anyone had any success with this in court? I’d like to hear success stories. I got pulled over by the NYPD right after (literally) coming into NY from the george washington bridge on 178th st. There was no way the officer saw me on my phone, because he insisted that i turn on my rear defogger because you couldn’t see through the back windshield. There also were cars surrounding me at the intersection. The officer asked to see my phone and i showed it to him, and he said, “yep, that’s the one”. as if they had a scanner on it or something??

    So do they have a scanner to know if a phone is being used?

    is it possible to use the defense of having the phone on speakerphone sitting by the shifter?

    This is ridiculous, targeting out of state drivers for the new york cell phone law. I have a Florida tag.

  31. Amy Says:

    Here’s a question – what if you’re leaving a voice memo on your iPod touch? It’s not a phone although if you’re holding it up to your ear to leave/hear a voice memo for yourself it may look like you’re on the phone (especially when the iPhone looks identical). I’m curious if this would hold up in court as the defense. According to the law, this whole thing only applies to cell phones.. not devices that happen to look like cell phones.


  32. Sounds like you have a good case. The statute says that having the phone to the ear creates a rebuttable presumption of being on the phone. You could certainly try to prove that you weren’t on the phone by showing that you were using your ipod touch rather than a phone. It would sound like you probably have good chances.

  33. Knoll Says:

    I got a ticket from a NYC Bridge and Toll officer that I was handing my money to. He saw me move the phone while looking for more money, heard my son say something on the speaker phone, and told me I can’t be on the phone, I told him it was on speaker as always, and that I didn’t know there was something wrong with that. He acknowledged that he knew it was on speaker phone. He also saw that I was looking for the right amount of money and it was dark. I had to use both hands to move my bag, turn on light and finally reach into the left inside pocket of my coat. The phone was laying in the cup holder on speaker phone. He said it didn’t matter that it was on speaker phone or that I was standing still at the toll booth, but what mattered was that I touched the phone. He also said he believed I was holding the phone but I said why would I hold the phone if it’s on speaker, you can hear how loud it was. He ordered me over to the striped lines and sent two uniformed officers to get my info and issue me a ticket. Then, after I put my documents back, before I could get my seatbelt back on, he sent 3 officers to yell at me and tell me to get out of there. At this point, I felt like I was back in East Germany during the time the Stasi were always looking to terrorize someone. I asked them if they really wanted me to take off without my seat belt or while there were cars zipping by on both sides from the toll booths, until it was safe.(The other drivers obviously didn’t expect me to be at this narrow area of stripes- putting me there was unsafe to begin with). One of them said, “hey, I’m not the one who issued the ticket”. They could have stopped the traffic on one side so I could go safely. I thought one reason for them being there is for safety. Is this valid or is he just a bully cop?


  34. It sounds like you may have a strong case. The statute has a specific exception for use of hands free devices which the statute says applies when the phone is not in your hand. That sounds like it was the case with you so you should be fine if you go to trial. You might have to cross-examine the cop to elicit the testimony that you were never holding the phone, and then you can point out that the hands free exception applies since the speakerphone wasn’t in your hand. Good luck!

  35. Ignats Humphrey Says:

    I got a cellphone ticket the other day. I know it’s possible to get out of a ticket by pleading not guilty, going to court, and hoping the cop doesn’t show up.

    I think NYC cops often don’t show up at court because that would take them off the street where they can generate thousands of dollars each day writing tickets. The majority of people just send in the money because they can’t take the day off work to fight it. I would have to drive a good 2 hours round trip and pay for parking to fight the ticket.

    The ticket says it’s $130 — but are there other fees on top of this? I think the fees are way way way out of hand.

    If I decide to go to court hoping the cop doesn’t show, does anyone know if the judge would reschedule?

    Also these days with iPhones that have iPods and GPS, can a person say they were listening to music not making a phone call? Is that illegal?

  36. j.r. Says:

    Ignats, I suppose you could make the music/gps argument, but just be sure to bring in your bill, showing that you were not using the phone at that time, if you were fact using it. Perjury probably isn’t the best way out.

    You can straight pay the $130, but may run into additional fees if you plead not guilty.

    No, I don’t believe the judge would reschedule on you.

  37. Stu Says:

    I am not a lawyer but I believe that if your phone has a speakerphone function built-in, the phone qualifies as a “Hands-free mobile telephone” and that any use of the phone is legal under Subdivision 3(c)

    (e) “Hands-free mobile telephone” shall mean a mobile telephone that has an internal feature or function, or that is equipped with an attachment or addition, whether or not permanently part of such mobile telephone, by which a user engages in a call without the use of either hand, whether or not the use of either hand is necessary to activate, deactivate or initiate a function of such telephone.

    3. Subdivision two of this section shall not apply to (c) the use of a hands-free mobile telephone.


  38. I don’t think so because part of the definition of “using” the hands free device elsewhere in the staute indicates that the exception doesn’t apply if the device is in your hand.

  39. steve chafetz Says:

    I got a ticket in brooklyn ny for talking with cell phone on speakerphone. when cop asked me for my license and registration i gave my license and registration for my wife’s car (by accident) which was NOT the car i was driving. the ticket has my wife’s license plate listed and not the car i was driving .the cop didnt even realize i gave him the wrong registration.
    if i can proove that i was not in that car listed on ticket,is that a legal reason why ticket should be dismissed even though i was on the cell phone?


  40. Mr. Chafetz, I spoke to the attorney about your question. Speaking generally, he said that since the issue is speaking on the cell phone, rather that which registration is listed on the ticket, you would still be liable to pay the ticket, despite the typo that you mentioned on the face of the ticket. Good luck!

  41. Brent Says:

    EVERYONE LOOK…

    New York lawmakers passed a bill that prohibits all drivers from using portable electronic devices that took effect on November 1, 2009.

    The law prohibits all drivers from using portable electronic devices, such as cell phones and smart phones, to send text messages or e-mails while driving. The penalty for a violation of this law shall be a fine of up to $150. It is a secondary law, which means in order for a person to be ticketed for the offense, the driver must have committed a primary enforcement offense such as speeding, disobeying a traffic signal or other violation. This law will replace laws passed by other jurisdictions in NYS.

    http://www.nysgtsc.state.ny.us/phon-ndx.htm#top

    ((((in order for a person to be ticketed for the offense, the driver must have committed a primary enforcement offense such as speeding, disobeying a traffic signal )))

  42. j.r. Says:

    I go to court tomorrow for my ticket…

    Interestingly, the cop wrote that the phone was at my “mouth” and not “ear”, so that is the angle I am taking it. IF it must be in the immediate vicinity of the ear, then how am I guilty if it is in the immediate vicinity of the mouth?

    Any thoughts?

  43. sarah Says:

    I too got a ticket for talking on my cell phone, when I indeed was not talking. In fact, I hadnt so much as picked up my cell phone for the entirety of my trip.
    I brought my cell phone bill to court, proving this, and my evidence was disregarded and mocked.
    I wasted a day of work, 80 parking in nyc, plus tolls and gas to fight this ticket. My advice is don’t even bother. (esp if youre in a bankrupt state that needs the money)

  44. j.r. Says:

    Sarah, you dropped 80 on parking? Wow!

    Also, why do you believe the officer pulled you over? Did he really lie? Your phone wasn’t even visible?

  45. j.r. Says:

    Guilty.

    Perhaps I didn’t present my case well, but…

    1. The issuing officer was not the cop that was there. The cop that was there did not tell the story properly.

    2. The judged seemed to completely ignore the definition of “using” in saying the case against me was “established”.

    O’well. I may give it another crack.

  46. abena Says:

    Well, I got a ticket today for talking on my cell phone. I told the office that the phone was on my lap. He said take it to court.

  47. Hmmm Says:

    You sound like a dick. The point of the law is to prevent distracted driving, which you are clearly guilty of. Stop talking on the phone while driving before you kill someone.

  48. j.r. Says:

    “Hmmm” (if that is your real name), you sound like a dick. The point of the law is so the State of New York can raise revenue. Maybe they should ticket any and everyone who isn’t holding the wheel at “ten-and-two”? You know, before “hmmm” kills someone.

  49. Victor Says:

    I was pulled over recently for the same reason. Only I left my phone at home in my bookbag. The only thing I had in the car was my Ipod, which I showed the officer. When I told the police officer that I couldn’t have been using my cell phone because I left my phone at home and he could check and see if i had a phone in the car, he never responded and only asked for my license, registration, and insurance card. When he was finished writing the ticket, he drove up next to my car to hand over my documents and said not to worry, because there won’t be any points added to my license. I responded again saying that I didn’t have a cell phone, the other officer in the vehicle told me to keep it down and drove away. In the description of the ticket, the officer states “Driver Open Cellphone Driving”. What does that even mean?

  50. Hilary Says:

    Hi Victor and others. The exact same thing happened to me. Exactly. Not on the phone, and I didn’t even realize until pulled over and falsely accused that I had forgotten my phone at home on my coffee table.

    I think we were victims of what currently may be happening at the NYPD:

    http://cityroom.blogs.nytimes.com/2010/09/10/no-ticket-quotas-a-tape-suggests-otherwise/?scp=2&sq=NYPD%20quota&st=cse

    I am concerned about pleading not guilty because if I go to a hearing the police officer will be believed by the and I won’t.

    Since I use a pre-paid phone, I can’t get an itemized bill with call activity. Maybe I can print out the call log that’s on the phone’s SIM card? Victor, maybe you can? Lawyers, advice about whether they will work.

  51. lgluck Says:

    >>Stu said (on (April 3, 2010 at 10:08 AM)

    I am not a lawyer but I believe that if your phone has a speakerphone function built-in, the phone qualifies as a “Hands-free mobile telephone” and that any use of the phone is legal under Subdivision 3(c)
    3. Subdivision two of this section shall not apply to (c) the use of a hands-free mobile telephone.

    >>Benjamin Wolf said: I don’t think so because part of the definition of “using” the hands free device elsewhere in the statute indicates that the exception doesn’t apply if the device is in your hand

    BUT!!!!

    The definition of USING is:
    (c) “Using” shall mean holding a mobile telephone to, or in the immediate proximity of, the user’s ear.

    Not that I expect any judge to accept this but it is (to me) a clear loophole in the law!

  52. Catherine Says:

    I got a ticket for a 3 minute call from a 1800 it was the new york blood bank calling to reschedaul my appointment not htinking i answered… worthy cause any chance they will throw it out? curious to try?HE claimed i was texting i replied no i was not it was on speaker at least reduce teh sucker hes making me appear in person wtf?

  53. jon Says:

    Not sure if this is still being monitored by the OP, but I have a question that hasn’t been asked yet. I just moved to NY from another state. I haven’t yet registered my car or updated my license and I got a cell phone ticket. I didn’t leave any forwarding information in my old state. If I immediately update my license and registration to NY, will the ticket follow me?

  54. natasha Duhaney Says:

    i wanted to make an urgent telephone call, so after i went over the stop light I pulled my truck over on the side of the road made my call, after i ended the call i drove off. About 3 blocks from where i made the call i was pulled over by a cop, i asked her why did she pulled me over? she said, she saw me with the phone in my right hand. I told her she “did not” see me with the phone in my hand other than when i was parked to make the call, she really didnt want to hear it! She then asked me for my license and registration. At this time i was so nervous, i reached in my bag handed her my license, by the time i reached over to the dashboard for the registration she walked off, then have some nerve to wrote me (2) tickets (1 for cell phone in right hand and 1 for not presenting proper documentation). I pleaded not guilty to both because im honestly not guilty but based on what i’ve read. Does it make sense even going to court to fight these tickets?

    I really would love to get some feedback on this. I just feel like the cops are taking advantage because they are in uniforms, so they feel they are above the law

  55. j.r. Says:

    Natasha, you really have to decide the opportunity costs between paying and fighting. Personally, I feel like it is a losing battle and didn’t feel like the judge really listened to my case. Also, the assumption going in is guilty until proven innocent, so the onus is on you to show that you were not on the phone or only when pulled over. Do you really believe the judge is going to take your word over the cops?

    I could be wrong, but I don’t believe the cop that showed to court was even on the scene.

    I am a little more of the persuasion at this point that it is a racket and a losing battle.

    The 2 tickets seem absurd if the details provided are true and “complete”. If your time is free and not better spent doing something else, then I would fight it with an eye toward the fact that it is an uphill battle.

  56. Jagruti Says:

    I was driving in NYC today when I was pulled over. I rolled down the window and the officer tells me that he saw me with a call phone to my left ear. I told him that I was not even on the phone but he insisted that he saw me. The phone, however, was on my seat in between my legs where I usually keep it in case of an emergency. I asked him to look at my call log but he refused saying that he saw me. My last incoming and outgoing phone calls are from yesterday and I was absolutely not on the phone. I will plead not guilty but what are my chances and the best way to fight it?

  57. Hilary Says:

    Hi, I posted above and I did decide to plead not guilty. The hearing was completely uneventful. I showed up on time, it started on time (2:30 pm). A police officer was there to testify. I was surprised by all of this because it was the day of a quite giant blizzard in January. Most surprising was that my case was called first, at which point the judge asked the police office to describe what happened.He simply said ‘I do not recall.’ Then, the judge immediately declared me not guilty. I received a piece of paper time-stamped 2:31. Why? I have no idea. My guess is that cops are quite often writing tickets to fill quotas, and that they know that most (many) are bogus. Are police deliberately hoping to spend some easy afternoons at DMV, making sure that tickets are thrown out? Is this a mild protest against quotas? I don’t know. I think you should pay if you’re guilty (and stop talking on the phone while driving!!!)!!! But by all means consider pleading not guilty if you are not guilty. It seems unlikely that you will spend ‘all day’ at the DMV.

  58. Jagruti Says:

    Hi Hilary, thank you for your reply. I am not guilty and to be honest, cannot even believe that police officers do this. But, I will bring my call logs and hope that the justice system serves me right.

  59. Mike Says:

    Got a cell phone ticket in brooklyn. Violation of 1225C2A. Police officer wrote in the description box : Unauthorized use of cell phone while driving:, For one i was on speaker phone, I had the phone in my right hand just to make the call, and 2nd i was giving the ticket at 5:05pm…in 24 hour miltaty time as it states on the ticket for the officer to right in….The officer should have put 17:05 in the time slot, but in my view made a error and put in 05:05 in the time…..meaning the ticket was issued to me at 0505am….if a error with the time do i have a chance for a dismissal if I plead not guity? Im sure the judge at the hearing will ask the officer what time of day did you issue the ticket. am i right? thanks for your help everyone.

  60. Morgan Says:

    The time of day as it relates to the cell phone violation is irrelevant. If you were cited for, say, driving without your headlights, then you may have a case. For example, if on your citation the officer also improperly wrote your license plate, it would not matter and you would still likely be found guilty, since 1225-C2A is a violation that has no relevance to the vehicles registration number.

  61. Joe Says:

    Hi

    I got a ticket for talking on the cellphone. I was not even moving I was in traffic in NY,NY. The traffic was actually caused by the cops ticketing people. It was a sting op.

    Anyway I was on the phone it rang I hit speaker button the cop watched me in the window and then told me to pull over. He got the color and make of my car wrong on the ticket.

    what is the best way to proceed with this? How can I get this dismissed?

    thanks in advance

  62. elaine Says:

    I got a ticket for talking on a cell on 6/19/2010.Thepolice officer assumed this was a phone,when in fact it was my glucose monitor which looks like a phone,and had falle non my lap fron it’s place on sun visor. Obviously,you do not put a glucose monitor to your ear,but cop insisted it was a phone.I also hace a copt of my cell phone bill which indicates no activity @ time of ticket.I requested a trial ,which Nassau county has yet. to schedule.I keep getting shake down letters to pay fine and avoid liscense suspension.Please note that I live in Massachusetts,and would have to drive to Hempstead for this trial,but it now a matter principle.

  63. jag Says:

    Elaine, I think if you bring your call records with you, they will likely dismiss the ticket. Especially if you have a clean driving record otherwise. I would bring the glucometer also.

  64. ELVIN RODRIGUEZ Says:

    On friday december 2,I was driving on my truck when I stopped at a red lightwith my left hand on the wheel and my right hand on my cheek,the officer pull me over gave me a ticket supposing I was using a cell phone with. I’m not,can I win the ticket if I present my phone bill in court to the judge?

  65. jag Says:

    If you have not had any other traffic tickets and bring in your cell phone records, they might dismiss it. It’s worth a try, the tickets now carry 2 points. I pleaded not guilty, showed the judge my cell phone record, and he looked at my driving record and dismissed the ticket.

  66. jag Says:

    also, if the judge asks you, was there anything in your hand to make the police officer think you were on the phone, reply no without any hesitation. dont even mention that your hand was resting on your cheek.

  67. Fatima Says:

    Hi, I got a ticket for using my cell phone last night while driving in Brooklyn. The description the officer gave in the description/narrative is “Cell phone.” I was on speaker but the phone was next to me in the slot on the driver side door. The call had just ended so he saw the phone light up. When he pulled me over I was scared so I didn’t speak much – just apologized, said my head set had broken last week, and when he asked who I was talking to I said my husband had just called worried because I wasn’t home yet since I had been stuck in traffic for hours. He issued the ticket – I have a clean record and maybe 1 parking ticket for alternate side parking last year. Is there any good defense to fight this? I was on a call but I was on speaker. Any advice?

  68. jag Says:

    in my honest opinion, I dont think you’ll win this one. In order for you to have picked up the call or make the call, you have to have used the phone physically. That already warrants a ticket. Sorry :(

  69. Tom Says:

    On March 15, 2011, I received a ticket stating “Operating M/V on Cell Phone” and it was absolutely not true. Therefore, I immediately went straight home and printed the usage times of all incoming and outgoing phone calls, text messages, and internet usage and none agree with the 10:46am time that the officer claimed I was on the phone. I know that this can help me in court, however, can the judge state that I may have been using another phone and find me guilty? I only have this one phone, but it is very difficult to prove that. If he does state that…then I could claim that instead of documenting the vehicle information…they should write down the phone details instead? What is your feedback on this?

  70. paul Says:

    how are you I just got a cell phone ticket during i was driving like 30mins ago.
    I put it on the speaker and i said i didn’t put it in my ear.
    He asked me who you were talking to so i said my friend but i put my phone on speaker under my neck. He said do i look fucking stupid to you and i said no.
    I got a $130 ticket and i don’t see the points but i think i’m getting two points also. I had 4points so it would be my 6points.
    What should i do.? Paying a ticket is ok but i don’t wanna get points. Should i put Not guilty or Guilty? Is there any chance that i can win?

  71. j j Says:

    (g) “Immediate proximity” shall mean that distance as permits the operator of a mobile telephone to HEAR telecommunications transmitted over such mobile telephone, but shall not require physical contact with such operator’s ear.

    if u were able to hear ur father on the phone u were in immediate proximity

  72. Rachel Says:

    I just wanna say what BS this whole system is. I got a cell ticket today in ny. I have nj plates. i saw a cop flying from 100 yards back. now mind you there was 4 cars behind me at the time. w e all pull over to the side of the road to let him pass and he pulls behind me and gives me a cell phone ticket. what? because i have nj plates. he didnt even speak to me or tell me why he was giivng me a ticket. i started crying hysterically while he was writing it up. he saw me… comes up and hands me the ticket. i said,, excuse me. can you tell me what this is about. he just got back in his car and drove away. now i have 2 points?? this sucks!

  73. John Says:

    Just got a ticket (on my Birthday no less) for using what i thought was a hands free device except the Nassau County Police Officer told me that I could not have both ear buds in my ears? I told him this wired ear piece is what came with the phone as a hands free device – he gave me the ticket (No points) anyway – Can I fight this – the ticket does note that I had both ear buds in my ear.

  74. julian a Says:

    It’s funny though ,I guess the law does not apply to officers or there calls are more important than anyone elses because i constantly see police officers chatting away and laughing while they are driving and I also see them using their dash mounted laptops (HOW SAFE IS THAT!) ,I guess there just better drivers than anyone else,it’s do as I say not as I do i guess


  75. An outstanding share! I have just forwarded this onto a co-worker who
    was doing a little research on this. And he actually
    ordered me lunch because I found it for him… lol. So let me reword
    this…. Thanks for the meal!! But yeah, thanx for
    spending the time to talk about this topic here on your
    website.

  76. marie Says:

    my husband and I had just come out of a restaurant in NY queens we were having a conversation and my husband had his wallet in his right hand next to his chin, a police officer came out of nowhere behind us pulled us over and told my husband he pulled us over for being on the phone and that he saw him use a flip phone and hid it when he stopped us, we told him he was not on the phone we don’t own a flip phone we showed him the phone that we have. My husband has galaxy note and its huge and I have an iphone he didn’t care he just kept insisting he had a flip phone, We told him he could search the car but of course he did not. We also told him our car comes with a Bluetooth, all we have to do is say who we would like to call and it calls without us touching a phone. therefore even if my husband would have been on a call he would not see a phone in his hands or by his chin. We live in PA but we are going to fight this and plead not guilty, we are going to bring phone records and see what happens That’s ridiculous that one has to pay $130 and points and you were not even on the phone. I could see if you were on a phone ok pay and try and see if they will remove the points. But this is just totally false accusation. They need to do something with these cops that get there thrills on doing such things. This law needs to change….they are accusing innocent people…This does not feel like we are living in the USA.

  77. Ha! Says:

    The cop wasn’t worried about going to court for a traffic ticket that wasn’t dwi. Youll never see a Nassau cop at traffic court unless it’s a village

  78. charles olgee Says:

    Have you ever beat a 1225c2a summons where the user was in hands free mode but holding (right arm and hand holding phone extended out) the phone while driving?

  79. charles Says:

    Tried your theory today in court. Guilty!

  80. chris Says:

    Got a ticket for a cell phone usage.. When pulled over and asked if it was an emergency, I replied “Yes, I am lost and looking for a certain car shop on this road and I have a nail in my tire, which as you can see is 75% flat already and need to get to the my friends shop so he can patch it up before it starts running on the rim” Do you think this will be a legitimate excuse as an “emergency”? Or would it just be better to plead guilty and take the fine and 5 points on the license?

  81. Susan paolantonio Says:

    I got a cell phone ticket. I was just holding it . I wasn’t texting or talking in ny. Could a attorney best this?


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