Using Siri to Activate a Call Held Not to Be Same as Making a Phone Call on Cell Phone; Defendant Not Guilty

Section 1225-c(2a) of New York’s Vehicle and Traffic Law prohibits operating a motor vehicle upon a public highway while using a mobile telephone to engage in a call while such vehicle is in motion without a hands-free device. In The People v. Andrew Welch, the defendant was charged with violating VTL § 1225-c. At trial, the police officer testified that he observed the defendant behind the wheel of a 2010 Audi that drove past him. Per the officer’s testimony, defendant had a cell phone in his hand which he held close to his chin, and was talking into it. The defendant testified and admitted that he had the cell phone in his hand and was talking into it, but asserted he was using the phone’s Siri feature to activate a call.

Justice Karen Morris of Brighton Town Court held that the defendant’s testimony, if believed, rebuts the inference that he was engaged in a call and instead establishes that he was activating a call, an action that is not illegal. She thus found the defendant not guilty.

The decision described Siri as an electronic, voice-activated “personal assistant,” incorporated into many Apple products including the iPhone which is Apple’s mobile telephone. By use of voice commands, Siri enables the user to place phone calls, send messages, and more.

Motorists’ should beware, however, that Section 1225-d of New York’s Vehicle and Traffic Law is not limited to cell phone calls, but applies to any portable electronic device while such vehicle is in motion. Yet it is conceivable that using Siri does not violate this section either.

Subdivision (b) 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 e-mail, text messages, or other electronic data.” It is not clear that using Siri to activate a call would fall within this definition.

VTL §1225-d was enacted in August 2011 in order to clamp down on texting-while-driving and the large number of motor vehicle accidents it causes. According to the Department of Motor Vehicles, in the first year after the new law took effect tickets for texting increased dramatically while tickets for cell phone use fell considerably.

New York City counties account for the vast majority of texting/cellphone tickets. According to records, between July 2011 and July 2012: 45,910 tickets were issued in Brooklyn, 45,036 in Manhattan, 38,947 in Queens, 12,763 in the Bronx and 5,114 on Staten Island.

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