Nearly 6,000 people were killed and a half-million were injured in vehicle crashes in 2008 connected to driver distraction, including texting, according to the U.S. Department of Transportation. Presently, 25 states make it unlawful to text message while driving, with Wisconsin’s law just signed by the governor.
New York is another of the 25 states, pursuant to section 1225-d of the Vehicle and Traffic Law, which became effective November 1, 2009. Using a cell phone while driving a vehicle that is in motion has been illegal in New York since December 1, 2001 (VTL 1225-c).
Although the result of texting while driving can be fatal, a traffic stop based upon a violation of New York’s law should not subject someone to arrest, a Supreme Court Justice in Brooklyn recently held. In People v. Ali Abdul-Akim, 2010 WL 1856007 (N.Y.Sup., decided May 6, 2010), a vehicle was stopped because police observed its driver holding a cell phone with both hands so that neither of his hands was on the steering wheel. The police ended up arresting the driver for unlicensed driving and for operating a motor vehicle while unlawfully using a cell phone. A passenger was arrested for Unlawful Wearing of a Body Vest.
Supreme Court Justice Mark Dwyer held that these arrests were not legal. The one straightforward basis for the court’s decision regarding the driver’s use of the cell phone for texting is that the alleged violation occurred before VTL 1225-d became effective. However, the court found that even had the texting law been in effect, an arrest would have been improper because a violation of the statute would be considered a traffic infraction punishable by a fine of not more than $150.00. A jail term is not authorized. Importantly, although a warrantless arrest may be made for this offense, Justice Dwyer noted that the New York Court of Appeals has on several occasions expressed a preference for the issuance of an appearance ticket in lieu of arrest unless the officer has reason to fear an assault or has probable cause for believing that the driver committed a crime.
Justice Dwyer wrote: In the Court’s view, the Legislature did not intend traffic offenders to be regarded as and treated like criminals. Thus, the Vehicle and Traffic Law expressly provides that a traffic infraction is not a crime, and our statutes authorize the issuance of a summons in lieu of arrest. Since in this case there was no reason to fear an assault nor was there probable cause for believing that the driver committed a crime, the defendant should not have been arrested.
Interestingly, New York’s law against making cell phone calls while a vehicle is in motion requires that the phone is held to, or in the immediate proximity of, the user’s ear. There is a presumption that an operator of a 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 engaging in a call within the meaning of the section. The presumption is rebuttable by evidence tending to show that the operator was not engaged in a call.
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