Disclaimer: Attorney advertising. This information is intended to be general only and should not be taken as formal legal advice. No attorney-client relationship is formed as a result of the provision of this information.
Texting While Driving
For our first entry regarding what our state government has been up to recently, we have what we consider a pretty relevant, interesting topic: the recent tightening of the law on the “Use of portable electronic devices”, sometimes referred to as the “Texting While Driving Law”.
In 2009, NY adopted the original texting while driving law.* It made using a “portable electronic device” illegal while operating a motor vehicle. What counts as a “portable electronic device”?
- Handheld cell phones;
- Handheld devices with mobile data access;
- Laptop computers;
- Broadband personal communication devices;
- Two-way messaging devices;
- Electronic games; and
- Portable computing devices (I have no idea what this means beyond what was already covered in the rest of the list. Anybody out there using a graphing calculator while driving? Watch out!)
Also, the law covers quite a bit more than just texting. “Using” one of the above electronic devices can mean “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.”
There are a couple exemptions from the law. One exemption is for using the device to contact 911 or some other first responder or doctor in an emergency (no, calling Mom in an emergency doesn’t count). The other exemption is for police, fire fighters and ambulance operators in the performance of their official duties.
How does law enforcement know that you were actually texting or surfing the web or checking your email while driving? The law creates a presumption that anyone holding one of the devices listed above “in a conspicuous manner” is using it unlawfully. Therefore, you would have to provide evidence that you weren’t using it, which, looking at the extensive list of what “using” means, could prove difficult. (“Really officer! I was just lifting my phone up to see how heavy it was!”)
So what changed recently? On July 14, 2011, Governor Andrew Cuomo signed into law an amendment to the above law making it a lot easier for police to enforce the law.
Before this amendment, the police couldn’t pull you over for texting while driving if that’s all you were doing. There needed to be another reason such as a broken tail light, speeding, or some other violation. If they pulled you over for speeding, and saw that you were texting, then you’d get nailed. Now they can pull you over using your electronic device even if you were doing nothing else wrong. You may be able to drive perfectly while texting, but if they see you doing it they can, and will, write you a ticket.
The new amendment didn’t change any penalties for violating this law. Expect a fine of up to $150.00, plus a court surcharge. Governor Cuomo has stated that he will, through regulation changes, increase the current hit of 2 points on your driving record for each violation of this law to 3 points. We’re not sure at this point in time whether that change has been made yet. As of the time of this writing, 11 points on your record in 18 months may get your license suspended or revoked.
So there you have it. The police don’t need anything more than to see you holding your device “conspicuously” to pull you over.
*See NY Vehicle and Traffic Law § 1225-d