Liability for Using Electronic Devices While Driving

Criminal and Quasi-Criminal Liability Arising from Use of..., 5 A.L.R.7th Art. 3...
5 A.L.R.7th Art. 3 (Originally published in 2015)
American Law Reports | The ALR databases are made current by the weekly addition of relevant new cases.
ALR7th
Fern L. Kletter, J.D.
Criminal and Quasi-Criminal Liability Arising from Use of Portable Electronic Device While
Driving
The safety threat posed by distracted driving has prompted the enactment of legislation penalizing a motorist driving while
using a portable electronic device. This article collects and discusses all of the cases that have addressed criminal or quasi-
criminal liability arising from the use of a portable electronic device while driving.

For cases on this issue after the date of this annotation, use this query: (”motor vehicle” auto automobile car truck motorist
driver /p “portable electronic device”) (driving /5 text!) & da (aft 08/07/2015)

Suggestions for A.L.R.? Email an A.L.R. Attorney Editor.

________________________________________________________________________________________________________________
TABLE OF CONTENTS
Article Outline
Graphical Analysis
Research References
Table of Cases, Laws, and Rules
________________________________________________________________________________________________________________
ARTICLE OUTLINE
1 I Preliminary Matters
1 § 1 Scope
1 § 2 Background and summary
1 § 3 Practice pointers
II Validity of Statutes Penalizing Use of Portable Electronic Device While Driving

1
1 § 4 Vagueness and overbreadth
1 § 5 Right of privacy
1 § 6 Equal protection
1 III Liability for Using Handheld Device While Driving
1 § 7 Using amateur radio device
1 § 8 Making failed attempted call
© 2021 Thomson Reuters. No claim to original U.S. Government Works.

1 § 9 Holding device to view image—Held violation
1 § 10 Holding device to view image—Held no violation
1 § 11 Liability under statute for using handheld device for other than engaging in conversation
1 § 12 Liability for texting under statute prohibiting driving with screen device operating
IV Liability for Using Hands-Free Device While Driving

1
1 § 13 Holding hands-free device to activate, deactivate, or initiate function
1 § 14 Dialing hands-free device
1 § 15 Pressing multiple buttons on hands-free device
1 § 16 Liability under statute for using hands-free device for other than “listening”
1 § 17 Engaging in conversation while holding hands-free device
V Location and Motion of Vehicle as Affecting Liability

1
1 § 18 Using device when vehicle not in motion—Held no violation
1 § 19 Using device when vehicle not in motion—Held violation
1 § 20 Using device in parking lot
1 VI Presumptions Under Statutes as to Using Portable Electronic Device While Driving
1 § 21 Presumption as to using portable electronic device—Held presumption created
1 § 22 Presumption as to using portable electronic device—Held presumption not rebutted
1 VII Sufficiency and Weight of Evidence as to Finding Violation of Statute Prohibiting Use of Portable Electronic Device While Driving
0 § 23 Held verdict finding violation not against weight of evidence
0 § 24 Held evidence sufficient beyond reasonable doubt to prove violation
0 § 25 Held substantial evidence supported finding violation
0 § 26 Held evidence insufficient to prove violation
VIII Statutory Exemptions

1
1 § 27 Exemption for farming or agricultural operations
________________________________________________________________________________________________________________
I. Preliminary Matters
§ 1. Scope
The safety threat posed by distracted driving has prompted the enactment of legislation prohibiting driving while using a
portable electronic device. The statutes penalize a motorist conversing on a handheld device while driving, or using a
portable electronic device while driving for other purposes, such as text messaging. This article collects and discusses all of
the cases that have addressed criminal or quasi-criminal liability arising from the use of a portable electronic device while
driving.

Excluded from this article are cases in which an accused is charged with reckless driving based on having used a portable
electronic device while operating his or her vehicle.1

Some opinions discussed in this annotation may be restricted by court rule as to publication and citation in briefs; readers are
cautioned to check each case for restrictions. A number of jurisdictions may have rules, regulations, constitutional provisions,
or legislative enactments directly bearing upon this subject. These provisions are discussed herein only to the extent and in
the form that they are reflected in the court opinions that fall within the scope of this annotation. The reader is consequently
advised to consult the appropriate statutory or regulatory compilations to ascertain the current status of all statutes discussed
herein.

§ 2. Background and summary
Distracted driving has become a public health threat. Studies show that drivers spend more time gazing at their cell phones,
the greatest distracted driving culprit, than the road ahead. Research compares texting while driving to drunk driving,
demonstrating its fatal nature.2 These realities have compelled several states to enact legislation prohibiting driving while
using a portable electronic device to engage in a conversation, or for other purposes, such as text messaging. 3 The federal
government has also enacted legislation prohibiting the operators of commercial vehicles from texting while driving. 4

The cases in this article concern charges brought against a motorist for violating a statute prohibiting the use of a portable
electronic device while driving or operating a motor vehicle. The holdings accordingly hinge on the provisions of the relevant
statutes and the court’s interpretation of the statutory language, in addition to the application of the statute to the particular
facts of the case.

Authority has reviewed whether a statute or regulation penalizing a motorist who uses a portable electronic device while
driving was vague or overbroad (§ 4), violated privacy rights (§ 5), and violated equal protection rights (§ 6), concluding in all
circumstances that the statute was valid.

1 Constitutional Challenges to Regulations of Motorists Using Portable Electronic Devices While Driving
1 • For Vagueness or Overbreadth

1 • For Violating Privacy Rights
1 • On Equal Protection Grounds
Construing a statute prohibiting a motorist from engaging in a conversation on a handheld mobile telephone while operating a
motor vehicle, authority has decided whether a motorist was liable under the applicable statute for using a handheld amateur
radio device while driving (§ 7), and for making an attempted call that failed to go through ( § 8). Pertaining to a statute
prohibiting a motorist from using a portable electronic device while driving, authority has held that it is a violation under the
relevant statute to hold the device to view an image ( § 9), whereas other authority has held that it was not a violation under the
applicable statute to hold the device to look at an image, such as a map or the time ( § 10). Also considered was whether a
motorist could be liable under the terms of a particular statute for using a handheld device for other than engaging in a
conversation (§ 11); and whether a motorist could be liable for texting under a statute prohibiting driving with a screen device
operating (§ 12).

Under a statute exempting hands-free devices, when used as such, from the prohibition of using a portable electronic device
while driving, authority has held that there is no violation of the statute where the motorist holds the device to activate,
deactivate, or initiate a function of the device ( § 13); where the motorist dials numbers on the device ( § 14); or where the
motorist presses multiple buttons on the device, rather than just a single button ( § 15). It is a violation of the relevant statute,
however, to converse while holding a hands-free device ( § 17). Authority has considered whether, under the terms of a
particular statute, a motorist is liable for using a hands-free device for other than “listening” ( § 16).

There is authority ruling that using a portable electronic device while operating a motor vehicle does not constitute a
violation of the relevant statute where the vehicle was not actually in motion at the time the motorist was using the device ( §
18
). Other authority, however, has ruled that the fact that the vehicle was not actually in motion when the motorist was using
the device does not exempt the motorist from liability ( § 19). Also determined was whether using a portable electronic device
while operating a motor vehicle in a parking lot was within the scope of a statute prohibiting such use on a public highway ( §
20
).

Where a statute creates a rebuttable presumption that a motorist who is observed holding a portable electronic device is
presumed to have been unlawfully using that device, as defined by the applicable statute, authority then held that the
evidence presented in the particular case created the presumption that the accused was using a portable electronic device in
violation of the statute (§ 21), and that the motorist failed to rebut that presumption (§ 22).

Where a challenge was made to the sufficiency or weight of the evidence following a motorist’s conviction under a statute
prohibiting the use of a portable electronic device while driving, courts have concluded from the particular facts before it that
the verdict was not against the weight of the evidence ( § 23); was sufficient beyond a reasonable doubt to find a violation (§ 24);
and in cases heard before an administrative law judge that substantial evidence sustained the finding of liability ( § 25). In other
cases, the evidence was held insufficient to find that the accused violated a statute prohibiting the use of a portable electronic
device while driving (§ 26).

§ 3. Practice pointers
For purposes of a motion to suppress, the fact that it was subsequently determined that an accused did not violate a statute
prohibiting the use of a portable electronic device while driving is irrelevant for purposes of determining whether police had
reasonable suspicion or probable cause to effectuate a stop based on their observations that the accused was violating such
statute.5

II. Validity of Statutes Penalizing Use of Portable Electronic Device While Driving
§ 4. Vagueness and overbreadth
The following authority determined whether a statute penalizing the use of a portable electronic device while operating a
motor vehicle was vague or overbroad.

New York

People v. Neville, 190 Misc. 2d 432, 737 N.Y.S.2d 251 (J. Ct. 2002) New York State’s “cell phone law,” N.Y. Veh. & Traf.
Law § 1225-c(2)(a), prohibiting any person from operating a motor vehicle upon a public highway using a mobile telephone
to engage in a call while such vehicle is in motion, was not vague or overbroad, ruled the court. A law is void for vagueness
or overly broad where a reasonable person of ordinary intelligence would be unable to ascertain what conduct is prohibited,
stated the court. The court observed that the statute, at N.Y. Veh. & Traf. Law § 1225-c(1)(e), distinguishes between the
prohibited “mobile telephones” and the permitted “hands free mobile telephone” where the driver can maintain both hands on
the steering device. The court found this language to be clear and indisputable to the ordinary citizen. As an added concern
for public knowledge and understanding of the law, the court pointed out that for a one-month period before the law went
into effect for enforcement, the statute limited police action to the issuance of a verbal warning. Accordingly, the court
concluded that the statute was not void for vagueness or overly broad.

§ 5. Right of privacy
motor vehicle violated rights of privacy.

New York

Law § 1225-c, prohibiting the use of a mobile telephone while operating a motor vehicle on a public street or highway while
such vehicle is in motion, did not violate privacy rights and was a proper use of government police powers, ruled the court.
The court framed the question as whether New York State exceeded its authority and impeded individual rights, including the
right to privacy under the U.S. and New York State Constitutions. The police powers of the government concern the delicate
balancing act between the regulating authority of the state and the rights of individuals whose freedoms as a result may be
somewhat curtailed, stated the court. The court found that a law prohibiting the use of handheld cell phones satisfied the

state’s interest in protecting the health, safety, and welfare of its citizens, and was a proper use of its police power. The
legislative intent sets forth the need to protect citizens from the numerous motor vehicle accidents and serious physical
injuries that result from the use of handheld cell phones, observed the court. Continuing, the court stated that the only
impediment placed upon the public is to refrain from using a handheld cell phone while the car is in motion. Pursuant to N.Y.
Veh. & Traf. Law § 1225-c, the citizen can speak after the car has stopped or may operate a “hands free” phone, noted the
court. The court characterized this as a limited inconvenience. The court also observed that the statute mandates that a court
must waive the fine if the defendant provides proof of purchase of a hands-free device. Accordingly, the court found that the
State’s regulation was reasonable in its intentions and was a valid use of the legislature’s police authority.

§ 6. Equal protection
motor vehicle violated equal protection rights.

New York

Law § 1225-c, prohibiting the use of a mobile telephone while operating a motor vehicle on a public street or highway, was
not in violation of the Equal Protection Clause, ruled the court. The issue came before the court due to the number of
categories of individuals exempted from the statute’s enforcement. Under N.Y. Veh. & Traf. Law § 1225-c(3)(a), an
individual is exempt from violating the law if the call is to an emergency response operator, hospital, ambulance, fire
department, health clinic, medical doctor’s office, or police department. Also exempted are individuals who operate
authorized emergency vehicles, including ambulance drivers, police, and firefighters. The argument was made that these
exclusions resulted in a constitutional violation under the Equal Protection Clause of the 14th Amendment of the U.S.
Constitution (U.S. Const. Amend. XIV). As a general rule, stated the court, a legislative body may exempt certain situations
and professions so long as the exclusions bear a reasonable relation to the desired legislative purpose. Inasmuch as the cell
phone law and its exclusions were not based on race, sex, age, or national origin, the court found that no strict scrutiny test
requiring a compelling governmental interest was necessary. The court reasoned that it was logical that a legislature would
exempt those vehicles and professionals who needed to make emergency phone calls as part of their employment, and to
extend this exemption to a citizen who needed to make a call for those same reasons. The New York state legislature
recognized the need for all drivers to assist at times of emergency, and that such calls were short in duration, and would not
result in the long, distracting calls likely to lead to a motor vehicle accident, stated the court.

III. Liability for Using Handheld Device While Driving
§ 7. Using amateur radio device
The courts in the following cases considered whether a motorist using an amateur radio device was liable under a statute
prohibiting anyone from operating a motor vehicle while using a “mobile telephone.”

New York

People v. Raffa, 31 Misc. 3d 8, 919 N.Y.S.2d 267 (App. Term 2011) In ruling that the defendant’s conviction under N.Y.
Veh. & Traf. Law § 1225-c for operating a motor vehicle while using a “mobile telephone” was not proved beyond a
reasonable doubt, the court stated that the mere proof that the defendant employed a handheld amateur radio device while
operating his motor vehicle did not establish that the device was a “mobile telephone” within the meaning of the statute, as
there was no proof that the device was connected to a public switched telephone network and was provided by a commercial
mobile radio service. Under N.Y. Veh. & Traf. Law § 1225-c(2)(a), one is prohibited from operating a vehicle on a public
highway while employing a mobile telephone, defined in N.Y. Veh. & Traf. Law § 1225-c(1)(a) as a “device used by
subscribers and other users of wireless telephone service to access such service.” Wireless telephone service is defined under
the statute as a “two-way real time voice telephone communications service that is interconnected to a public switched
telephone network and is provided by a commercial mobile radio service, as such term is defined by 47 C.F.R. § 20.3.”
Exempted from the definition of commercial mobile radio are private services, such as citizens band radio, which is distinct
from amateur radio services, the latter which may function as voluntary noncommercial communication services, as set forth
in 47 C.F.R. § 97.1(a). If, as the People contended, amateur radios may be connected to public switched telephone networks,
they failed to prove that the defendant’s device was so connected, much less to a commercial mobile radio service, stated the
court. The mere proof that the defendant employed a handheld amateur radio device while operating his motor vehicle thus
did not establish his guilt of violating N.Y. Veh. & Traf. Law § 1225-c(2)(a), concluded the court.

Comment
The court stated that it would not determine whether N.Y. Veh. & Traf. Law § 1225-d, prohibiting use of a portable electronic
device while operating a motor vehicle in motion, would prohibit the use of the type of communication device employed by the
defendant, as the incident here occurred prior to the effective date of § 1225-d.

People v. Bozak, 29 Misc. 3d 711, 907 N.Y.S.2d 632 (N.Y. City Ct. 2010) A handheld amateur radio device was not a
“mobile telephone” as defined under N.Y. Veh. & Traf. Law § 1225-c(1)(a), prohibiting talking on a mobile telephone while
driving, where the device was used for a private mobile radio service, not a commercial mobile radio service, and it thus was
not used to access a wireless telephone service, held the court, granting the defendant’s motion to dismiss. “Mobile
telephone” is defined in N.Y. Veh. & Traf. Law § 1225-c(1)(a) as a device used by subscribers and other users of wireless
telephone service to access such service. A “wireless telephone service” is defined in N.Y. Veh. & Traf. Law § 1225-c(1)(b)
as two-way real time voice tele-communications service that is interconnected to a public switched telephone network and is
provided by a commercial mobile radio service, as such term is defined by 47 C.F.R. § 20.3. A review of 47 C.F.R. § 20.3
revealed to the court that “citizens band radio service” is defined under private mobile radio service, not commercial mobile
radio service. Therefore, the court found that the use of an amateur radio device did not fit the definition of a mobile
telephone under the Vehicle and Traffic Law, and dismissed the charge.

§ 8. Making failed attempted call
The following authority determined whether a motorist who attempted to make a call which failed to go through could be
liable under a statute prohibiting one from using a cell phone to “engage in a call” while driving.

New York

People v. Deep, 12 Misc. 3d 1137, 821 N.Y.S.2d 381 (N.Y. City Ct. 2006) Since there was no other compelling testimony to
refute the defendant’s statement that her attempted call did not go through, evidence was insufficient to convict the defendant
of using a cell phone to engage in a call while operating a motor vehicle on a public highway while the vehicle is in motion,
in violation of N.Y. Veh. & Traf. Law § 1225-c(2)(a), ruled the court. The defendant testified that she was not engaging in a
call with a cell phone as she was driving, because the call which she attempted to make, while stopped at a red light, did not
go through. The court found the proof insufficient that the defendant was using the phone to engage in a call, as that phrase is
defined in N.Y. Veh. & Traf. Law § 1225-c(1)(f).


§ 9. Holding device to view image—Held violation
The following authority ruled that holding a portable electronic device to view an image on the device, while driving,
constituted a violation of the relevant statute.

New York

People v. A.N., 44 Misc. 3d 269, 985 N.Y.S.2d 835 (N.Y. City Ct. 2014) Stating that merely holding a portable electronic
device while operating a motor vehicle creates a rebuttable presumption of using the device in violation of N.Y. Veh. & Traf.
Law § 1225-d, prohibiting using a portable electronic device while driving, the court disagreed with the holding in the lower
court that the legislature could not have contemplated prohibiting the use of a cell phone merely as a clock or a watch.
Finding no support for this position in the language of the statute, the court stated that reading or viewing the time stored as
electronic data on a cell phone is specifically listed as constituting “using” under N.Y. Veh. & Traf. Law § 1225-d(2)(b).
Section 1225-d(2)(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 email, text
messages, or other electronic data.” The court noted that under N.Y. Veh. & Traf. Law § 1225-d(4), a person who holds a
portable electronic device in a conspicuous manner while operating a motor vehicle is presumed to be using such device.

§ 10. Holding device to view image—Held no violation
The courts in the following cases ruled that using a portable electronic device to view an image on the device did not
constitute a violation of the relevant statute in the particular case before the court.

California

People v. Spriggs, 224 Cal. App. 4th 150, 168 Cal. Rptr. 3d 347 (5th Dist. 2014) Having found that the legislature intended
that Cal. Veh. Code § 23123(a) only prohibits the use of a wireless telephone to engage in a conversation while driving
unless the phone is used in a hands-free manner (§ 11), the court held that the defendant, who held his cellular phone in his
hand and looked at a map application while driving, did not thereby commit the offense of using a wireless telephone while
driving. While stopped in heavy traffic, the defendant pulled out his wireless phone to check a map application for a way
around the congestion. A California Highway Patrol officer issued the defendant a traffic citation for violating Cal. Veh.
Code § 23123 after spotting him holding the phone. The court agreed that the defendant was not “using” the wireless
telephone within the meaning of the statute, because the statute applied only if a driver was listening and talking on a wireless
phone that was not being used in hands-free mode.

New York

People v. Riexinger, 40 Misc. 3d 623, 968 N.Y.S.2d 832 (Town Ct. 2013) A provision of N.Y. Veh. & Traf. Law § 1225-d,
prohibiting a motorist’s use of a portable electronic device while operating a motor vehicle, does not encompass the use of a
cell phone as a clock or watch, ruled the court. Observing the defendant driving while she was holding a cell phone, police
issued her a ticket under § 1225-d. At trial, the defendant testified that as the clock in her car was broken, she checked her
cell phone for the correct time. She further testified that she was not texting or communicating on the phone, and exhibits
from her phone carrier did not show texting or phone call activity for the relevant time. There was no testimony that the cell
phone was anywhere near the defendant’s ear. The court noted that the statute defines “using” a portable electronic device 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
statute also provides that a person who holds a portable electronic device in a conspicuous manner while operating a motor
vehicle is presumed to be using such device, a presumption that is rebuttable by evidence tending to show that the operator
was not using the device within the meaning of the statute. Noting that N.Y. Veh. & Traf. Law § 1225-c(f), prohibiting
engaging in a call on a handheld mobile telephone while driving, exempts holding a mobile telephone to activate, deactivate,
or initiate a function of the phone, the court observed that § 1225-d, enacted after N.Y. Veh. & Traf. Law § 1225-c, does not
contain a similar exemption. Inasmuch as criminal statutes must be strictly construed, the court found that the prohibited
action under § 1225-d did not encompass using a cell phone as a clock or a watch. Finding that the defendant’s actions were
akin to taking a pocket watch out to view the time, the court found that in enacting § 1225-d, the New York state legislature
surely did not intend to prohibit this kind of action. Accordingly, the court found the defendant not guilty.

Comment
The court in People v. A.N., 44 Misc. 3d 269, 985 N.Y.S.2d 835 (N.Y. City Ct. 2014) (§ 9), disagreed with the reasoning in People
v. Riexinger, 40 Misc. 3d 623, 968 N.Y.S.2d 832 (Town Ct. 2013), finding no support for its position in the language of the
statute. Stating that under N.Y. Veh. & Traf. Law § 1225-d(4), a person who holds a portable electronic device in a conspicuous
manner while operating a motor vehicle is presumed to be using such device, the court in A.N. declared that viewing the time
stored as electronic data on a cell phone is specifically listed as constituting “using” under N.Y. Veh. & Traf. Law § 1225-d(2)(b).

§ 11. Liability under statute for using handheld device for other than engaging in conversation
[Cumulative Supplement]
The courts in the following cases considered whether a statute prohibiting a motorist from using a wireless telephone while
driving only prohibited the motorist from driving while conversing on a handheld telephone, as opposed to other uses of the
phone.

California

People v. Spriggs, 224 Cal. App. 4th 150, 168 Cal. Rptr. 3d 347 (5th Dist. 2014) The legislature intended that Cal. Veh. Code
§ 23123(a), providing that a person shall not drive a motor vehicle while using a wireless telephone unless it is specifically
designed and configured to allow “hands-free listening and talking” and is used in that manner, only prohibits the use of a
wireless telephone to engage in conversation while driving, unless the telephone is used in a hands-free manner, ruled the
court. Though the statute does not define “using” or any other term contained therein, the court pointed out that the statute
specifically stated that the phone must be used in a manner that allowed for “hands-free listening and talking,” but did not
state that the phone must be used hands-free for anything else. Had the legislature intended to prohibit drivers from using the
phone for all purposes while holding it, it would have used broader language, such as “hands-free operation” or “hands-free
use,” rather than limiting the telephone’s required design and configuration to “hands-free listening and talking,” reasoned
the court. Inasmuch as not all uses of a wireless telephone involve listening and talking, the court found that to interpret §
23123(a) as applying to any use of a wireless phone would render the “listening and talking” element nonsensical. While the
statute could have been written more clearly, the court believed that the inclusion of the phrase “hands-free listening and
talking” limited the statute’s prohibition to engaging in a conversation while holding a wireless phone. The court found that
the legislative history of § 23123(a) supported its interpretation, as the legislature’s concern about handheld use of wireless
phones was addressed by prohibiting drivers from engaging in conversations while holding the phone, rather than prohibiting
all handheld uses of the phone. Statements from the executive branch that the intent behind the law was to eliminate the
distraction of holding a cellular phone and conversing while driving further confirmed the court’s construction of the statute.
The court found that to interpret § 23123(a) to ban all handheld use of wireless telephones, as argued by the People, would

lead to absurd results. For example, stated the court, it would be a statutory violation for a driver to merely look at the phone
display if the phone was not designed and configured for hands-free listening and talking, or to hold the phone even if it was
configured for hands-free listening and talking. The legislature’s subsequent enactments pertaining to the use of wireless
phones and other electronic devices for texting while driving further confirmed the court’s conclusion.

New York

People v. Fortini, 47 Misc. 3d 1218(A), 2015 WL 2183313 (N.Y. City Ct. 2015) In a case in which the defendant was
charged with operating a motor vehicle on a public highway while using a mobile phone in violation of N.Y. Veh. & Traf.
Law § 1225-c(2)(a), the court dismissed the charge, as since the defendant’s and officer’s testimony clearly established that
the defendant was holding her cell phone while taking videos and/or pictures at the time her vehicle was in motion, the proper
charge against her would have been a violation of N.Y. Veh. & Traf. Law § 1225-d(1), not N.Y. Veh. & Traf. Law § 1225-
c(2)(a). The court noted that if the defendant was taking videos and/or pictures while her vehicle was in motion, then she was
not “engaging in a call” within the meaning of N.Y. Veh. & Traf. Law § 1225-c(1)(f), which states that a driver is not
“engaging in a call” when said driver is “holding a mobile telephone to activate, deactivate or initiate a function of such
telephone.” The court held that holding a mobile phone to take videos and/or pictures while operating a motor vehicle
constitutes “activat[ing] or initiat [ing] a function of such telephone,” not “engaging in a call” within the purview of N.Y.
Veh. & Traf. Law § 1225-c(2)(a). The court concluded that the trial testimony clearly indicated that the defendant was
charged under the wrong section of the Vehicle and Traffic Law warranting a dismissal.

CUMULATIVE SUPPLEMENT
Cases:
Defendant’s conduct of using her cell phone to talk to her father, the owner of their family farm, to coordinate deliveries of
pork products to various stores and restaurants was for the purpose of “farming or agricultural operations” and thus was
exempt from statute prohibiting operating a motor vehicle while using a mobile communication device; exemption for
farming or agricultural operations was not limited only to production phase of a farm business. Or. Rev. Stat. § 811.507(3)
(b). State v. Bennett, 287 Or. App. 338, 402 P.3d 732 (2017).

[Top of Section]
[END OF SUPPLEMENT]
§ 12. Liability for texting under statute prohibiting driving with screen device operating
The following authority determined whether a motorist could be liable for “text-messaging” while driving under a statute
prohibiting one from driving a motor vehicle with a screen device operating.

Alaska

State v. Adams, 2013 WL 5973899 (Alaska Ct. App. 2013) The prior version of Alaska Stat. § 28.35.161, prohibiting driving
a motor vehicle with a screen device operating, was at best ambiguous as to text messaging, and therefore, applying the rule
of lenity, the statute could not be construed to prohibit text messaging while driving, ruled the court. Police stopped the
defendant after receiving reports that he was driving erratically. The defendant admitted to police that he was text messaging
while driving, and was charged with violating the prior version of Alaska Stat. § 28.35.161. The statute provided that a
person commits the crime of driving with a screen device operating if the person is driving a motor vehicle; the vehicle has a
television, video monitor, portable computer, or other similar means capable of providing a visual display that is in full view
of the driver while the vehicle is in motion; and the monitor is operating while the person is driving. The statute specified
various exemptions, including for portable cellular telephones or personal data assistants used for verbal communication or to
display caller identification information. The legislature thereafter amended Alaska Stat. § 28.35.161 to expressly prohibit
text messaging while driving. The court noted that the bill preceding enactment of the former statute was introduced
following a fatal head-on collision, in which the driver of the other vehicle had installed a DVD player and monitor on the
dashboard, and that he may have been watching a movie at the time of the accident. Some legislators expressed concern that
the bill, which had started out addressing the issue of drivers watching video devices, had added the more controversial issue
of cell phone usage, making it less likely to pass. Seeing that the legislators wanted to ensure that the use of handheld devices
for playing movies, as opposed to verbal communication, would be prohibited, the court believed that the legislature
ultimately decided to leave resolution of the latter for a later time. The State, however, argued that “verbal communication,”
as used in the exemption under the former statute, indicated that the legislature intended for all oral communication to be
exempted, but that any written communication, such as text messaging, was within the scope of the prohibition. The court
found that the term “verbal communication” in this context was ambiguous, as it could refer to spoken and written forms of
communication. Further, inasmuch as most “personal data assistants” used at the time did not have voice-telephone-call
capabilities, the court reasoned that inclusion of “personal data assistants” in the list of devices used for “verbal
communication” suggested that the legislature intended “verbal communication” to include written communication. Even if it
were to find that the legislature intended “verbal communication” to refer only to oral communication, the court stated that it
did not necessarily follow that text messaging was within the scope of the prohibition, as the legislative history and the
statutory language did not support such a broad reading of the former statute. Inasmuch as the former statute did not
proscribe any particular conduct by the driver, but proscribed the specific circumstance of having a screen device operating
within the driver’s view while driving, the court reasoned that a prohibition against text messaging would require more than
simply proving that a device was operating in the driver’s view while driving. In light of the ambiguities, the court applied
the rule of lenity, holding that the statute could not be construed to prohibit text messaging while driving.

IV. Liability for Using Hands-Free Device While Driving
§ 13. Holding hands-free device to activate, deactivate, or initiate function
Pertaining to a statute prohibiting a motorist from using a wireless telephone while driving, except when the telephone is a
hands-free device and is used as such, the courts in the following cases determined whether a motorist is permitted to hold a
hands-free device in order to activate, deactivate, or initiate a function of the device.

New Jersey

State v. Malone, 2011 WL 2582730 (N.J. Super. Ct. App. Div. 2011) The court ruled that N.J. Stat. Ann. 39:4-97.3(a),
banning the use of a wireless telephone by a motorist except for a hands-free telephone or electronic device used as such,
permits a motorist to briefly hold the phone or device in one hand to activate, deactivate, or initiate a function for hands-free
use. Although N.J. Stat. Ann. 39:4-97.3(b) defines a “hands-free wireless telephone” as a device that either functions in a
hands-free manner, or becomes hands-free when equipped with an attachment, the court pointed out that N.J. Stat. Ann. 39:4-
97.3(b) specified that this definition shall not preclude the use of either hand to activate, deactivate, or initiate a function of
the phone. Thus, said the court, the plain language of the statute permits motorists to hold the phone in one hand for the
limited purpose of activating, deactivating, or initiating a function of the telephone. The court found that the State’s argument
that the statute prohibits a motorist from holding a cell phone at any time while driving conflicted with N.J. Stat. Ann. 39:4-
97.3(b). Reading the entire definition as a whole, the court stated that a motorist could use one hand to activate, deactivate, or
initiate a function of the phone, but once engaged in conversation, the phone must be used without either hand.



New York

People v. Hudacek, 26 Misc. 3d 55, 894 N.Y.S.2d 325 (App. Term 2009) Concluding that evidence was insufficient to
support a determination that the defendant was holding a mobile telephone up to her ear, rather than activating a hands-free
mobile telephone device by attaching it to her ear, as required to support a conviction for using a mobile telephone to engage
in a call while such vehicle was in motion, the court stated that although N.Y. Veh. & Traf. Law § 1225-c makes it unlawful
for a person to operate a motor vehicle upon a public highway while using a mobile telephone to “engage in a call” while
such vehicle is in motion, the statute exempts the use of a “hands-free mobile telephone” from this prohibition, as well as
holding a mobile telephone to activate, deactivate, or initiate a function of the phone. The court noted that N.Y. Veh. & Traf.
Law § 1225-c(1)(e) defines a “hands-free mobile telephone” as a mobile telephone that has an internal feature or function, or
that is equipped with an attachment 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 the telephone.

People v. Goldstein, 36 Misc. 3d 1214(A), 957 N.Y.S.2d 265 (J. Ct. 2012) (unpublished Table disposition; 2012 WL
2923201) Where the defendant was charged with texting while driving in violation of N.Y. Veh. & Traf. Law § 1225-d,
prohibiting anyone from operating a motor vehicle while using any portable electronic device while such vehicle is in
motion, the court was not convinced beyond a reasonable doubt that the defendant was “using” the device in violation of the
statute where the court found that the defendant was holding the phone to activate his Bluetooth device while the vehicle was
stopped. Although § 1225-d is silent as to whether the use of a portable electronic device permits activation, deactivation, or
initiating a function of the device, N.Y. Veh. & Traf. Law § 1225-c, prohibiting a motorist from using a handheld cellphone
while driving, does permit activation, deactivation, or initiating a function of a mobile telephone, stated the court.

§ 14. Dialing hands-free device
hands-free device and is used as such, the following authority determined whether a motorist is permitted to dial a number on
a hands-free device.

New Jersey

State v. Malone, 2011 WL 2582730 (N.J. Super. Ct. App. Div. 2011) The provision that allows motorists to use “either hand
to activate, deactivate, or initiate a function of the telephone,” N.J. Stat. Ann. 39:4-97.3, permits motorists to dial the
telephone, ruled the court, finding that the Law Division judge’s interpretation of the statute that activating or deactivating
does not include dialing was incorrect. The defendant, convicted of using a wireless telephone or electronic communication
device by an operator of a moving motor vehicle on a public road or highway, argued that the statute allows a motorist to dial
the phone when activating, deactivating, or initiating a function of the phone. The court observed that the legislature neither
defined the terms “activate, deactivate, or initiate a function,” nor expressly permitted or prohibited dialing. While it was
clear that the statute was designed to minimize distractions while driving, the court found that its plain language does not
require drivers to keep both hands on the wheel at all times, but instead requires motorists talking on a hands-free telephone
to do so without using either hand. Noting that a sponsor’s statement to the bill made it clear that the legislature recognized
that the use of a hands-free wireless telephone would reduce, but not eliminate, the distractions associated with dialing, the
court found that the legislature intended that motorists be able to “activate” the phone through the use of dialing. The Law
Division judge’s interpretation of the statute that activating or deactivating does not include dialing was incorrect, concluded
the court.

Cases:
Verdict in nonjury trial convicting defendant of operating a motor vehicle upon a public highway while using a mobile
telephone was not against the weight of the evidence; defendant testified that he was using a hands-free earpiece device for
cell phone, rather than the cell phone, but defendant did not deny that he had been engaged in a call, nor did he bring the
earpiece and hands-free device with him to court when he testified. N.Y. Vehicle and Traffic Law § 1225-c(2). People v.
Ermmarino, 60 Misc. 3d 50, 80 N.Y.S.3d 845 (App. Term 2018).

[Top of Section]
[END OF SUPPLEMENT]
§ 15. Pressing multiple buttons on hands-free device
hands-free device and is used as such, the following authority determined whether the statute permits a motorist to press more
than one button on a hands-free device in order to activate, deactivate, or initiate a function of the device.

New Jersey

State v. Malone, 2011 WL 2582730 (N.J. Super. Ct. App. Div. 2011) The court held that the activation of a wireless
telephone with a hands-free device requires the “pressing of buttons,” and is not limited to just pressing a single button, as
found by the Law Division judge. The Law Division judge convicted the defendant under N.J. Stat. Ann. 39:4-97.3 for using
a wireless telephone or electronic communication device by an operator of a moving motor vehicle on a public road or
highway. Under N.J. Stat. Ann. 39:4-97.3, stated the court, motorists are allowed to use either hand to activate, deactivate, or
initiate a function of the telephone, although the statute is silent on whether a motorist is permitted to press a button or
buttons to activate, deactivate, or initiate a function. The court noted that some cell phones require the pushing of a button or
buttons, or an icon, to connect or disconnect the hands-free device, and once the phone is connected to the hands-free device,
one cannot engage in a conversation unless he or she activates, deactivates, or initiates a function of the phone. Generally,
continued the court, there are three methods for dialing a wireless phone: the standard method of dialing; speed dialing; and
voice dialing. Stating that with voice dialing, a user may still need to press a button on the phone to activate that feature, and
that the other two methods of dialing require the user to press more than one button on the phone, the court found that the
statute did not limit the method used by a motorist to dial a number. Even if it were to agree with the Law Division judge’s
conclusion that activating or deactivating the phone takes one touch of the button, the court could not ignore that portion of
the statute authorizing a driver to use one hand to initiate a function of the phone. That phrase should be given meaning so
that no word is rendered inoperative or superfluous, declared the court. Initiating a function of the telephone could involve
pressing multiple buttons to find a contact in the address book, to activate the voice dial function, to dial numbers to place a
call, or to receive an incoming call, said the court. The court thus concluded that although activating or deactivating the
phone may require the touch of only one button, initiating a function of the phone could require pressing multiple buttons.

§ 16. Liability under statute for using hands-free device for other than “listening”

Pertaining to a statute prohibiting a motorist from using a wireless telephone while driving, except when using a hands-free
device as such, the following authority determined whether the particular statute limited the use of a hands-free device to
merely “listening.”

New Jersey

State v. Malone, 2011 WL 2582730 (N.J. Super. Ct. App. Div. 2011) The court ruled that N.J. Stat. Ann. 39:4-97.3(a),
banning the use of a wireless telephone by a motorist except when the telephone is a hands-free wireless telephone, or when
an electronic communication device is used hands-free, does not limit the “use” of a wireless telephone fitted with a hands-
free device to “listening.” The court observed that “use” is defined in N.J. Stat. Ann. 39:4-97.3 to include talking or listening
to another person on the telephone, text messaging, or sending an electronic message. Thus, said the court, the plain language
of the statute permits motorists to use a wireless phone for talking, listening, text messaging, or sending an electronic
message, provided that the phone is used with a hands-free device, and the motorist is not holding the phone. As the statute
does not limit the use of a cell phone fitted with a hands-free device to only “listening,” the court found that the Law
Division’s conclusion to that effect was error.

§ 17. Engaging in conversation while holding hands-free device
The courts in the following cases decided whether a statute exempting hands-free devices from a prohibition of using a
portable electronic device while driving prohibits a motorist from conversing while holding such device.

New York

Smilow v. New York State Dept. of Motor Vehicles, 95 A.D.3d 1023, 944 N.Y.S.2d 248 (2d Dep’t 2012) In ruling that the
use of a speaker-enabled smartphone by the operator of a motor vehicle while he was driving the vehicle by using one of his
hands to hold the device next to his ear violated N.Y. Veh. & Traf. Law § 1225-c, prohibiting the operator of a motor vehicle
from using a mobile telephone to engage in a call while such vehicle was in motion, excepting where the operator was not
using either hand while engaged in the call, the court reasoned that while the use of a hands-free mobile telephone by a
motorist is in certain circumstances permissible under N.Y. Veh. & Traf. Law § 1225-c(3)(c), N.Y. Veh. & Traf. Law §
1225-c(1)(e) defines a “hands-free mobile telephone” as one by which a user engages in a call without the use of either hand.

People v. Smith, 24 Misc. 3d 1212(A), 890 N.Y.S.2d 370 (N.Y. City Ct. 2009) (table disposition at 2009 WL 1929094) In
concluding that a driver holding a so-called hands-free device in her hand at the time that she was observed by a police
officer speaking on the device was guilty of violating N.Y. Veh. & Traf. Law § 1225-c(2)(a), penalizing one from operating a
motor vehicle while using a mobile phone, the court stated that although it is possible for a driver to use a hands-free phone
device while driving without violating the Vehicle and Traffic Law, and it is lawful for a person to activate or deactivate a
handheld phone, it is a violation to drive while speaking and holding such device. The court noted that N.Y. Veh. & Traf.
Law § 1225-c defines “using” as holding a mobile telephone to, or in the immediate proximity of, the user’s ear; and
“engaging” in a call as talking into or listening on a handheld mobile telephone. Holding a mobile telephone to activate,
deactivate, or initiate a function of the telephone is excluded from this definition, stated the court. A hands-free telephone is
defined under the statute as a mobile telephone that has an internal feature or function, or that is equipped with an attachment,
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. Holding a hands-free device while simultaneously conducting a telephone
conversation is a technical violation of the statute, stated the court.

People v. Gay, 18 Misc. 3d 1114(A), 856 N.Y.S.2d 501 (J. Ct. 2008) In denying the defendant’s motion to dismiss the charge
under N.Y. Veh. & Traf. Law § 1225-c(2)(a) of using a mobile phone while operating a motor vehicle on a public highway,
based solely on the fact that the defendant owned a hands-free mobile phone, the court stated that the fact that a phone
qualifies as a “hands-free mobile telephone” as defined by N.Y. Veh. & Traf. Law § 1225-c(1)(e) does not permit a motorist
to operate a hands-free phone on a public highway, unless he engages in a call without the use of either hand, and therefore

the defendant’s reliance on the exemption under N.Y. Veh. & Traf. Law § 1225-c(3) for using a hands-free device was
misplaced, as whether or not the defendant was properly using his hands-free mobile phone was a question of fact for trial.

V. Location and Motion of Vehicle as Affecting Liability
§ 18. Using device when vehicle not in motion—Held no violation
As pertains to a statute prohibiting a motorist from driving a motor vehicle while using a handheld portable electronic device,
the courts in the following cases ruled that the statute did not apply where the motorist used the device on a public highway
while the vehicle was not in motion.

New York

prohibiting anyone from operating a motor vehicle while using a portable electronic device while such vehicle is in motion,
the court, in acquitting the defendant of charges of using a handheld device in violation of N.Y. Veh. & Traf. Law § 1225-
d(2)(b), or violating the prohibitions of N.Y. Veh. & Traf. Law § 1225-d(4), stated that there was no proof indicating that the
defendant was utilizing the device while the vehicle was in motion. While the defendant was stopped at a red light, an officer
observed the defendant holding a handheld telephone. There was no testimony that the defendant was looking at the phone or
operating it in any manner after he began driving when the light turned green. The defendant testified that while stopped at
the light, he was trying to activate his Bluetooth device. Although there was proof that the defendant was operating his
vehicle, there was no proof indicating that he was using the device while the vehicle was in motion, stated the court.

People v. Deep, 12 Misc. 3d 1137, 821 N.Y.S.2d 381 (N.Y. City Ct. 2006) In ruling that evidence was insufficient to convict
the defendant of using a cell phone to engage in a call while operating a motor vehicle on a public highway while the vehicle
is in motion in violation of N.Y. Veh. & Traf. Law § 1225-c(2)(a), the court pointed to the defendant’s testimony that she
attempted to make a call while she was stopped at a red light. The court noted that the testimony of the officers supported her
statement that at one point she did stop at a red light.

§ 19. Using device when vehicle not in motion—Held violation
The following authority ruled that a statute prohibiting a motorist from driving a motor vehicle while using a handheld
portable electronic device on a public highway applied even if the vehicle was not in motion at the time the motorist was
using the device.

California

People v. Nelson, 200 Cal. App. 4th 1083, 132 Cal. Rptr. 3d 856 (1st Dist. 2011) The language of Cal. Veh. Code § 23123,
prohibiting a person from “driving” a motor vehicle while using a wireless telephone unless it is specifically designed and
configured to allow hands-free listening and talking and is used in that manner “while driving,” together with the statute’s
legislative history, and the significant and numerous public safety hazards that likely would result from interpreting the
statute otherwise, indicated to the court that the legislature intended that § 23123 apply where there was substantial evidence
that the defendant listened to a handheld wireless telephone during his fleeting pause at a traffic light while driving on public
roadways. A police officer observed the defendant stopped at a light, dialing his cell phone and placing it to his ear. The
defendant looked at the officer and closed the phone. The defendant testified that he was checking his e-mail while waiting
for the light to turn green. Arguing that he was not driving at the time because he was stopped at the light, the defendant
asserted that “driving,” as used in § 23123, requires contemporaneous volitional movement of the vehicle as an element of
the offense. The People argued that the repeated use of the term “operate” in the legislative history of § 23123 indicated that
the legislature intended to regulate the “operation” of motor vehicles, not just “driving” them. Emphasizing that it was only
reviewing the actions of the defendant in this case, the court concluded that Cal. Veh. Code § 23123(a) does not contain clear
and unambiguous language that would exempt the defendant from its ambit, even though it refers to “drive” and “while
driving.” Identical language in other Vehicle Code provisions, as well as the references in § 23123 to “operation” in defining
an exemption for emergency vehicles, suggested to the court that it should construe “drive” and “while driving” so as to
apply Cal. Veh. Code § 23123(a) to the defendant. Contrasting case authority which held that an intoxicated driver parked on
the side of the road with the engine running was not “driving,” the court pointed out that here, there was proof of volitional
movement, in that the defendant used his telephone during a fleeting pause at a traffic light “while driving” on public
roadways. The legislative history demonstrated to the court that the legislature distinguished between hands-free and
handheld use of wireless phones by persons driving and operating motor vehicles on the public roadways, and enacted §
23123 because of the safety implications of the widespread use of handheld wireless phones while operating motor vehicles.
The legislative findings and the interchangeable use of “drive” and “operate” in the legislative history indicated to the court
that the legislature was generally concerned about the use of handheld wireless phones in motor vehicles on the public
roadways, rather than their use only when the vehicles were in motion. The legislative history thus strongly supported the
conclusion that the legislature intended § 23123 to apply to the circumstances before the court. The court reasoned that
adopting the defendant’s interpretation would open the door to allow millions of people across the state to repeatedly use
phones and devices whenever paused momentarily in traffic. The court thus affirmed the judgment of the traffic court
convicting the defendant.

Comment
The two concurring opinions indicated that the conviction should be affirmed because “driving” includes sometimes stopping, and
here, the defendant was not parked.

§ 20. Using device in parking lot
As pertains to a statute prohibiting a motorist from using a portable electronic device while operating a motor vehicle, the
following authority considered whether using such a device in a parking lot was included within the scope of the statute’s
prohibition.

New York

People v. Moore, 196 Misc. 2d 340, 765 N.Y.S.2d 218 (J. Ct. 2003) The parking lot of a privately owned shopping center
was not a “public highway” within the meaning of N.Y. Veh. & Traf. Law § 1225-c(2), prohibiting operation of a motor
vehicle upon a public highway while using a cell phone to engage in a call while the vehicle was in motion, and thus the
defendant could not be charged with violating the law for talking on a cell phone while driving in a parking lot, ruled the
court. Generally, stated the court, as per N.Y. Veh. & Traf. Law § 1100(a), the Vehicle and Traffic Law regulates activity
occurring upon public highways, private roads open to public motor vehicle traffic, and any other parking lot. There being an
obvious risk of injuring pedestrians and property in parking lots, the court thought that it would make sense for the legislature
to regulate simultaneous driving and telephone use in parking lots. The court, however, noted that § 1100(a) limits itself by
adding “except where a different place is specifically referred to in a given section.” Thus, said the court, if a traffic
infraction statute specifically identifies the location where the activity is prohibited, that statute controls, rather than the
broader definition under N.Y. Veh. & Traf. Law § 1100. Continuing, the court observed that N.Y. Veh. & Traf. Law § 1225-
c(2)(a) has such a limitation, as it only prohibits simultaneous driving and mobile phone use if the driver is “upon a public
highway.” Had the legislature excluded this language, then phone use while driving would have been prohibited in the

expanded locations set forth in N.Y. Veh. & Traf. Law § 1100, including any parking lot, reasoned the court. Checking to see
if the law somehow reincorporated parking lots into the definition of public highways, the court noted that there was a
separate definition for “parking lots” at N.Y. Veh. & Traf. Law § 129-b, but it did not bootstrap parking lots into public
highways. Further, said the court, though N.Y. Veh. & Traf. Law § 134 specifically defines a “public highway” to include
any public place, and shopping center parking lots appear to be open to the public, they really are not “public,” as they exist
for the benefit of private owners and benefit the public only to the extent the private owner wishes. The court therefore ruled
that a privately owned and controlled shopping center’s parking lot did not fit within the definition of a public highway for
purposes of N.Y. Veh. & Traf. Law § 1225-c.

VI. Presumptions Under Statutes as to Using Portable Electronic Device While Driving
§ 21. Presumption as to using portable electronic device—Held presumption created
The courts in the following cases concluded that the evidence presented created a rebuttable statutory presumption that a
motorist was using a portable electronic device while driving, in violation of a statute prohibiting such use.

New York

Snitow v. New York State Dept. of Motor Vehicles, 121 A.D.3d 1008, 996 N.Y.S.2d 55 (2d Dep’t 2014) In concluding that
substantial evidence supported the determination of an administrative law judge that a motorist violated N.Y. Veh. & Traf.
Law § 1225-c(2), prohibiting operation of a motor vehicle on a public highway while using a mobile telephone, the court
found that the police officer’s testimony that he observed the motorist operating the cell phone with her left hand to her left
ear without using the hands-free device gave rise to the presumption that she was engaging in a call, and the motorist failed to
submit evidence to rebut that presumption (§ 22).

Smilow v. New York State Dept. of Motor Vehicles, 95 A.D.3d 1023, 944 N.Y.S.2d 248 (2d Dep’t 2012) The court
recognized the presumption that a motorist had been engaged in a telephone call by holding a mobile telephone to, or in the
immediate proximity of, his ear while his vehicle was in motion, in violation of N.Y. Veh. & Traf. Law § 1225-c, where a
police officer credibly testified at a hearing that she had observed the motorist driving, with his cell phone in his right hand
approximately three to five inches from his right ear. Under N.Y. Veh. & Traf. Law § 1225-c, one is prohibited from
operating a motor vehicle upon a public highway while using a mobile telephone to engage in a call while the vehicle is in
motion. According to N.Y. Veh. & Traf. Law § 1225-c(2)(b), a motor vehicle operator who holds a mobile telephone to, or in
the immediate proximity of, his or her ear while the vehicle is in motion is presumed to be engaged in a call.

People v. A.N., 44 Misc. 3d 269, 985 N.Y.S.2d 835 (N.Y. City Ct. 2014) Where the evidence established that the defendant
was holding a cell phone while his vehicle was in motion, the court stated that the holding of the cell phone created a
presumption of use under N.Y. Veh. & Traf. Law § 1225-d(4), prohibiting the operation of a motor vehicle while using a
portable electronic device. The statute provides that a person who holds a portable electronic device in a conspicuous manner
while operating a motor vehicle is presumed to be using such device. The evidence showed that a state trooper observed the
defendant driving in an adjacent lane on an interstate highway, while holding a cell phone eight to 12 inches from his head.
The trooper could neither see what the defendant was doing with the cell phone nor what was on the cell phone’s screen.

People v. Campanaro, 19 Misc. 3d 1116(A), 862 N.Y.S.2d 816 (N.Y. City Ct. 2008) (unpublished Table disposition; 2008
WL 932701) The court concluded that the People showed that the inference that the defendant was “engaged in a call”
created by the rebuttable presumption at N.Y. Veh. & Traf. Law § 1225-c(2)(b) was established beyond a reasonable doubt,

and that the defendant failed to rebut the presumption with credible evidence rendering him guilty of violating N.Y. Veh. &
Traf. Law § 1225-c(2)(a) (§§ 22, 26), prohibiting one from operating a motor vehicle upon a public highway while using a
mobile telephone to engage in a call while such vehicle is in motion. The officer testified that the defendant was operating the
moving vehicle while holding a cell phone to his ear, that the cell phone light was illuminated, and that the defendant was
speaking into the phone. When stopped, the defendant stated that he did not have a hands-free device. The court found that
the credible evidence showed beyond a reasonable doubt that the defendant was using a handheld mobile telephone while
driving along the street; that the defendant was engaged in a call, talking into the phone while holding it in the immediate
proximity of his ear; and that the phone was held at a distance so as to permit the defendant to hear the conversation. Under
N.Y. Veh. & Traf. Law § 1225-c(2)(b), stated the court, such evidence created the presumption that the defendant was
engaging in a call.

Comment
The court in People v. Campanaro, 19 Misc. 3d 1116(A), 862 N.Y.S.2d 816 (N.Y. City Ct. 2008) (unpublished Table disposition;
2008 WL 932701), discussed Village of Floral Park v Cusmai, NYLJ, 1/5/2004, p. 20, c. 1, in which the court stated that the
officer’s testimony that he observed the defendant operating a vehicle with a cell phone about six inches from his ear was credible
evidence that the officer observed the defendant with a cell phone in his hand while operating a motor vehicle on a public
highway, and what appeared to be a driver on a cell phone, as pertaining to the presumption under N.Y. Veh. & Traf. Law § 1225-
c(2)(b) that the defendant was “engaged in a call,” but that the defense was sufficient to rebut the presumption ( § 26).

Cases:
Trooper’s testimony at trial was legally sufficient to invoke rebuttable presumption that defendant violated statute prohibiting
use of a portable electronic device while operating a motor vehicle, even though trooper could not state what defendant was
doing with phone that he allegedly observed her holding, where trooper testified that he observed defendant operating a
motor vehicle with her right hand while holding a flat black cell phone horizontally in her left hand, with her palm up, which
was positioned between driver’s window and steering wheel. N.Y. Vehicle and Traffic Law §§ 1225-d(1), 1225-d(2) (a),
1225-d(4). People v. Vogt, 70 Misc. 3d 30, 135 N.Y.S.3d 751 (App. Term 2020).

[Top of Section]
[END OF SUPPLEMENT]
§ 22. Presumption as to using portable electronic device—Held presumption not rebutted
Having found that the evidence presented created a rebuttable statutory presumption that a motorist was unlawfully using a
portable electronic device while driving or operating a motor vehicle, the courts in the following cases concluded that the
motorist failed to present sufficient evidence to rebut that presumption.


New York

Snitow v. New York State Dept. of Motor Vehicles, 121 A.D.3d 1008, 996 N.Y.S.2d 55 (2d Dep’t 2014) In concluding that
substantial evidence supported the determination of an administrative law judge that a motorist violated N.Y. Veh. & Traf.
Law § 1225-c(2), prohibiting operation of a motor vehicle on a public highway while using a mobile telephone, the court
having found that the police officer’s testimony that he observed the motorist operating the cell phone with her left hand to
her left ear without using the hands-free device gave rise to the presumption that she was engaging in a call, further ruled that
the motorist failed to submit evidence to rebut that presumption. The court reasoned that the fact-finder was entitled to
disregard the motorist’s testimony that she was utilizing the hands-free device at the time the police officer observed her, as
this was an issue of credibility and there was no basis in the record to overturn the fact-finder’s credibility determination in
that regard.

Smilow v. New York State Dept. of Motor Vehicles, 95 A.D.3d 1023, 944 N.Y.S.2d 248 (2d Dep’t 2012) The presumption
that a motorist had been engaged in a telephone call by holding a mobile telephone to, or in the immediate proximity of, his
ear while his vehicle was in motion, in violation of N.Y. Veh. & Traf. Law § 1225-c, had not been rebutted, ruled the court,
where a police officer credibly testified at a hearing that she had observed the motorist driving, holding his cell phone three to
five inches from his right ear, and the motorist only disputed the exact distance between the phone and his ear. According to
N.Y. Veh. & Traf. Law § 1225-c(2)(b), a motor vehicle operator who holds a mobile telephone to, or in the immediate
proximity of, his or her ear while the vehicle is in motion, is presumed to be engaged in a call. The court found that the
presumption was not rebutted, and confirmed the judgment of the administrative law judge that the motorist violated N.Y.
Veh. & Traf. Law § 1225-c(2)(a).

People v. A.N., 44 Misc. 3d 269, 985 N.Y.S.2d 835 (N.Y. City Ct. 2014) The court concluded that the defendant’s testimony
that he did not make a call or send a text near the time he was stopped, combined with the lack of a record of such on his
phone bill, was not sufficient to overcome the presumption in N.Y. Veh. & Traf. Law § 1225-d(4), prohibiting the operation
of a motor vehicle while using a portable electronic device, that a person who holds such device in a conspicuous manner
while operating a motor vehicle was presumed to be using the device. A state trooper observed the defendant driving on a
highway, while holding a cell phone eight to 12 inches from his head. The trooper could neither see what the defendant was
doing with the phone nor what was on the phone’s screen. The defendant credibly testified that he had made three calls using
the Bluetooth feature of his car, and that he used his car’s built-in GPS to navigate his route. Though stating that the
presumption of use was colored by the lack of testimony from the officer as to what the defendant was doing with the phone,
the defendant’s denial of use, and the stipulated lack of a record of a call or text on his phone bill, the court did not find this
sufficient to overcome the presumption. First, the court found that the lack of any record of any contemporaneous text or
phone call was of little import, as N.Y. Veh. & Traf. Law § 1225-d(2)(b), makes it a violation to hold a portable electronic
device while viewing, taking, or transmitting images, playing games, or for the purpose of present or future communication.
The court reasoned that one could type a text but not send it contemporaneously and it would still constitute “using” a
portable electronic device. Second, the court found that it would be difficult for a police officer to see what the driver was
actually doing with a portable electronic device, considering that they are traveling in separate vehicles, often distant from
each other. The court concluded that the evidence was not sufficient to overcome the presumption in this case.

WL 932701) Having concluded that the People showed that the inference that the defendant was “engaged in a call” created
by the rebuttable presumption at N.Y. Veh. & Traf. Law § 1225-c(2)(b) was established beyond a reasonable doubt, the court
went on to find that the defendant failed to rebut the same with credible evidence, and thus was guilty of violating N.Y. Veh.
& Traf. Law § 1225-c(2)(a), prohibiting one from operating a motor vehicle upon a public highway while using a mobile
telephone to engage in a call while such vehicle is in motion. The court had found that the credible evidence showed that the
defendant was talking into a handheld mobile phone while holding the phone in the immediate proximity of his ear and while
his vehicle was moving, creating under N.Y. Veh. & Traf. Law § 1225-c(2)(b) the presumption that he was engaging in a
call. Though the statute provides that this presumption is rebuttable by evidence tending to show that the operator was not
engaged in a call, the court found that the defendant failed to rebut the presumption. The defendant testified that he did not
hold the cell phone up to his ear, but that he always drove leaning on the armrest, holding the phone in one hand up to his
head to be ready to respond if it rang. He argued in rebuttal that he was not “engaged in a call” under N.Y. Veh. & Traf. Law

§ 1225-c(1)(f), because he was neither listening nor talking to anyone; rather, when the phone rang, he flicked it open just to
see who was calling but did not answer it, and therefore was merely initiating a function of the phone. The court found that
the defendant’s testimony in which he agreed with the officer that the cell phone light lit up his ear conflicted with his
testimony that he only flicked open the phone to see who called. The court reasoned that the defendant could not have
checked the screen to see who was calling by holding the phone next to his ear out of his line of sight, particularly
considering that the officer never saw the defendant remove the phone from his ear the whole time that he was talking into it.
The defendant having testified falsely as to this fact, the court disregarded the balance of his testimony as being untruthful.
The court found that the defendant’s testimony was a prevarication tailored to the definition of “engaging in a call” under
N.Y. Veh. & Traf. Law § 1225-c(1)(f), as excluding holding a mobile telephone to activate, deactivate, or initiate a function
of the phone.

Comment
The court in People v. Campanaro, 19 Misc. 3d 1116(A), 862 N.Y.S.2d 816 (N.Y. City Ct. 2008) (unpublished Table disposition;
2008 WL 932701), discussed Village of Floral Park v Cusmai, NYLJ, 1/5/2004, p. 20, c. 1, in which the charges under N.Y. Veh.
& Traf. Law § 1225-c(2)(b) were dismissed, where the court in that case found that the defense offered evidence sufficient to rebut
the presumption that the defendant was “engaged in a call.” The officer in Village of Floral Park testified that he observed the
defendant operating a vehicle with a cell phone about six inches from his ear. The defendant testified that, thinking that he had an
incoming call, he picked up his cell phone and held it at arm’s length with his right hand to view the screen, but that there was no
incoming call. Noting that the officer could not testify that the defendant was actually engaged in a call, the court credited the
defendant’s testimony. The defendant also had stated that the telephone records, if presented, would demonstrate that no call was
made or received at the time of the offense.

VII. Sufficiency and Weight of Evidence as to Finding Violation of Statute Prohibiting Use of Portable Electronic Device While Driving
§ 23. Held verdict finding violation not against weight of evidence
In the following cases in which a motorist was convicted of violating a statute prohibiting one from driving while using a
portable electronic device, the courts concluded that the verdict was not against the weight of the evidence.

New York

People v. Olsen, 124 A.D.3d 1084, 1 N.Y.S.3d 555 (3d Dep’t 2015) The court ruled that the defendant’s conviction for using
a portable electronic device while operating a motor vehicle in violation of N.Y. Veh. & Traf. Law § 1225-d was not against
the weight of the trial evidence. The defendant was convicted in part of criminally negligent homicide and using a portable
electronic device while operating a motor vehicle, when she lost control of her vehicle on a two-lane country road, fatally
striking the victim. As to the charge of using a portable electronic device while operating a motor vehicle, the court noted that
witnesses observed the defendant looking down as she was driving just prior to the accident; one witness saw the defendant
holding an unidentified item in her hands at the top of the steering wheel and noticed that her hands and thumbs appeared to
be moving; and the defendant’s friend acknowledged that she sent the defendant text messages on the morning of the
accident, chiding the defendant for running late. Trial testimony revealed that, although the text messages appeared to have
been received and opened, the defendant did not respond to them. When one witness stopped to check on the defendant
immediately following the accident, the defendant asked the witness to retrieve her cell phone, which was located on the
floor of the front passenger seat. As this evidence allowed the court to reasonably infer that the defendant was holding and
using her cell phone while driving, the court did not agree with the defendant’s claim that the conviction was against the
weight of the trial evidence.

People v. Tzotzchev, 43 Misc. 3d 138(A), 992 N.Y.S.2d 160 (App. Term 2014) Upon review of the record, particularly the
testimony of the police officer who observed the defendant engaged in a call on a mobile telephone, holding the phone near
his head, while the vehicle that he was operating was in motion, the court was satisfied that the verdict of guilt for using a
mobile telephone while operating a motor vehicle, in violation of N.Y. Veh. & Traf. Law § 1225-c(2)(a), was not against the
weight of the evidence. During his testimony, the defendant admitted that he had been talking on the telephone while driving,
but contended that the phone had been hanging on his vehicle’s rear-view mirror. In fulfilling its responsibility to conduct an
independent review of the weight of the evidence, the court noted that it nevertheless accords great deference to the fact-
finder’s opportunity to view the witnesses, hear their testimony, and observe their demeanor.

People v. Meijuan Shao, 20 Misc. 3d 133(A), 867 N.Y.S.2d 19 (App. Term 2008) Where the defendant was charged under
N.Y. Veh. & Traf. Law § 1225-c with operating a motor vehicle while talking on a cell phone, and the trial court determined
that the offense was committed within a few minutes of the time alleged in the accusatory instrument when, by the
defendant’s own admission, she used her cell phone, the court ruled that upon the exercise of its factual review power, the
verdict of guilt was not against the weight of the evidence.

People v. Keith, 17 Misc. 3d 128(A), 851 N.Y.S.2d 65 (App. Term 2007) (unpublished Table disposition; 2007 WL
2937120) The court, in a case in which the defendant was convicted of violating N.Y. Veh. & Traf. Law § 1225-c(2)(a),
concluded without further explication that the verdict was not against the weight of the evidence. The court saw no basis for
disturbing the trial court’s determinations concerning credibility.

Cases:
Defendant’s conviction was supported by legally sufficient evidence and was not against the weight of the evidence, in trial
for using a portable electronic device while operating a motor vehicle, even though defendant’s testimony completely
conflicted with trooper’s testimony that he observed her operating a motor vehicle with her right hand while holding a flat
black cellphone horizontally in her left hand; defendant’s rebuttal of presumption that she violated statute required a
credibility determination and trial court, finding trooper’s testimony credible, was entitled to disbelieve defendant. N.Y.
Vehicle and Traffic Law §§ 1225-d(1), 1225-d(2) (a). People v. Vogt, 70 Misc. 3d 30, 135 N.Y.S.3d 751 (App. Term 2020).

[Top of Section]
[END OF SUPPLEMENT]
§ 24. Held evidence sufficient beyond reasonable doubt to prove violation
The courts in the following cases concluded that the evidence was sufficient beyond a reasonable doubt to prove that a
motorist violated a statute prohibiting one from driving while using a portable electronic device.

New York

People v. Meijuan Shao, 20 Misc. 3d 133(A), 867 N.Y.S.2d 19 (App. Term 2008) Where the defendant was charged under
N.Y. Veh. & Traf. Law § 1225-c with operating a motor vehicle while talking on a cell phone, and the trial court determined
that the offense was committed within a few minutes of the time alleged in the accusatory instrument when, by the
defendant’s own admission, she used her cell phone, the court ruled that viewing the evidence in the light most favorable to
the People, it was legally sufficient to establish all of the elements of the charge beyond a reasonable doubt.

People v. Keith, 17 Misc. 3d 128(A), 851 N.Y.S.2d 65 (App. Term 2007) (unpublished Table disposition; 2007 WL
2937120) The court, in a case in which the defendant was convicted of violating N.Y. Veh. & Traf. Law § 1225-c(2)(a),
concluded without further explication that the verdict was supported by legally sufficient evidence. The court saw no basis
for disturbing the trial court’s determinations concerning credibility.

People v. Smith, 24 Misc. 3d 1212(A), 890 N.Y.S.2d 370 (N.Y. City Ct. 2009) A driver holding a so-called hands-free device
in her hand at the time that she was observed by a police officer, because the device had fallen off her visor, and who was
unquestionably speaking on the telephone at the time she was stopped, was guilty of violating N.Y. Veh. & Traf. Law §
1225-c(2)(a), operating a motor vehicle while using a mobile phone, held the court. The court found that here, the defendant
was holding a hands-free device while simultaneously conducting a telephone conversation, a technical violation of the
statute, rendering her guilty as charged.

WL 932701) The court concluded that the People showed that the inference that the defendant was “engaged in a call”
created by the rebuttable presumption at N.Y. Veh. & Traf. Law § 1225-c(2)(b) was established beyond a reasonable doubt ( §
21
), and that the defendant failed to rebut the same with credible evidence ( § 22), and thus found the defendant guilty of
violating N.Y. Veh. & Traf. Law § 1225-c(2)(a), prohibiting one from operating a motor vehicle upon a public highway
while using a mobile telephone to engage in a call while such vehicle is in motion. The officer’s testimony that he observed
the defendant driving his motor vehicle several blocks before he stopped the vehicle showed the court beyond a reasonable
doubt that the defendant was operating a motor vehicle upon a public highway at the time in question. The officer testified
that the defendant was holding in his hand a cell phone to his ear, that the cell phone light was illuminated, and that the
defendant was speaking on the phone. The court found that this credible evidence beyond a reasonable doubt created a
presumption that the defendant was engaged in a call under N.Y. Veh. & Traf. Law § 1225-c(2)(b), which presumption the
defendant failed to rebut. The defendant testified that he did not hold the cell phone up to his ear, but that he always drove
leaning on the armrest, holding the phone in one hand up to his head to be ready to respond if it rang. He testified that when
the phone rang, he flicked it open to see who was calling, but did not answer it. The court found that the defendant’s
testimony that he agreed with the officer that the cell phone light lit up his ear conflicted with his testimony that he only
flicked open his phone to see who called, inasmuch as the defendant could not see who was calling by holding the phone next
to his ear out of his line of sight, particularly considering that the officer never saw the defendant remove the phone from his
ear while he was talking into it. The defendant having testified falsely as to this fact, the court disregarded the balance of his
testimony as being untruthful, finding it to be a prevarication tailored to the definition of “engaging in a call” under N.Y.
Veh. & Traf. Law § 1225-c(1)(f), as excluding holding a mobile telephone to activate, deactivate, or initiate a function of
such phone.

§ 25. Held substantial evidence supported finding violation
The courts in the following cases concluded that substantial evidence supported a finding that a motorist violated a statute
prohibiting the use of a portable electronic device while driving.

California

People v. Nelson, 200 Cal. App. 4th 1083, 132 Cal. Rptr. 3d 856 (1st Dist. 2011) Affirming the judgment of the traffic court
convicting the defendant under Cal. Veh. Code § 23123, prohibiting a person from driving a motor vehicle while using a

wireless telephone unless it is specifically designed and configured to allow hands-free listening and talking and is used in
that manner while driving, the court found that there was substantial evidence that the defendant listened to a handheld
wireless telephone during his fleeting pause at a traffic light while driving on public roadways. A police officer observed the
defendant, sitting in the driver’s seat, stopped at a light, in the process of dialing his cell phone and placing it to his ear. The
defendant looked at the officer, removed the phone from his ear, and closed it. The defendant testified that he was checking
his e-mail while waiting for the light to turn green.

New York

Snitow v. New York State Dept. of Motor Vehicles, 121 A.D.3d 1008, 996 N.Y.S.2d 55 (2d Dep’t 2014) Substantial
evidence supported the determination of an administrative law judge that a motorist violated N.Y. Veh. & Traf. Law § 1225-
c(2), prohibiting operation of a motor vehicle on a public highway while using a mobile telephone, ruled the court, where the
police officer’s testimony that he observed the motorist operating the cell phone with her left hand to her left ear without
using the hands-free device gave rise to the presumption that she was engaging in a call and the motorist failed to submit
evidence to rebut that presumption. The fact-finder was entitled to disregard the motorist’s testimony that she was utilizing
the hands-free device at the time the police officer observed her, as this was an issue of credibility and there was no basis in
the record to overturn the fact-finder’s credibility determination in that regard, stated the court.

Matievskaya v. State Dept. of Motor Vehicles, 121 A.D.3d 694, 993 N.Y.S.2d 569 (2d Dep’t 2014) Substantial evidence,
particularly the testimony of the police officer who issued the summons to the driver, supported an administrative law judge’s
determination that the driver was using a mobile phone while operating a motor vehicle, in violation of N.Y. Veh. & Traf.
Law § 1225-c(2)(a), ruled the court.

Smilow v. New York State Dept. of Motor Vehicles, 95 A.D.3d 1023, 944 N.Y.S.2d 248 (2d Dep’t 2012) The determination
that a motorist operated a motor vehicle upon a public highway while using a handheld mobile telephone to engage in a call
while such vehicle was in motion, contrary to N.Y. Veh. & Traf. Law § 1225-c(2)(a), was supported by substantial evidence,
concluded the court, where a police officer credibly testified that she had observed the motorist, while he was driving his car
on a public street, with a cell phone in his hand approximately three to five inches from his ear. Aside from disputing the
exact distance between the phone and his ear, the court noted that the motorist conceded that the police officer’s testimony
was “pretty accurate.” Though the device was a speaker-enabled smartphone, the court stated that the record very clearly
supported the finding that the motorist was using one of his hands to hold the phone in the immediate proximity of his ear.

Peterson v. State, Dept. of Motor Vehicles, 90 A.D.3d 1055, 934 N.Y.S.2d 837 (2d Dep’t 2011) The court ruled that the
determination that a motorist violated N.Y. Veh. & Traf. Law § 1225-c was supported by substantial evidence.

Tornheim v. Appeals Bd. of New York State Dept. of Motor Vehicles, 82 A.D.3d 1253, 919 N.Y.S.2d 863 (2d Dep’t 2011)
The determination of the administrative law judge that a motorist violated N.Y. Veh. & Traf. Law § 1225-c(2)(a) was
supported by substantial evidence, ruled the court.

See also the following cases holding that there was probable cause or reasonable suspicion that a motorist violated a statute
prohibiting the use of a portable electronic device while driving, where—

—police saw the defendant talking on a cellular telephone while driving. People v. Barnes, 2013 WL 366221 (Cal. App. 3d
Dist. 2013), unpublished/noncitable.

—police initially saw the defendant texting on his cellular telephone while he was parked by the side of the road; and police
returned to that spot five minutes later and observed the defendant pull out into traffic, lean and look down a few times as
though he was still using his cellular phone, and make movements with his hands as if he were texting. People v. Corrales,
213 Cal. App. 4th 696, 152 Cal. Rptr. 3d 667 (2d Dist. 2013), review denied, (May 1, 2013) (applying Cal. Veh. Code §
23123.5).

—police saw the defendant holding his cell phone close to his face, and pressing the buttons on the phone to either send a text

message or to make or receive a call. People v. Calderon, 2012 WL 172452 (Cal. App. 2d Dist. 2012),
unpublished/noncitable (applying Cal. Veh. Code § 23123(a) and Cal. Veh. Code § 23123.5(a)).

—police observed the defendant driving a motor vehicle and holding a cell phone to his ear while the vehicle was in motion.
People v. East, 119 A.D.3d 1370, 988 N.Y.S.2d 394 (4th Dep’t 2014) (applying N.Y. Veh. & Traf. Law § 1225-c(2)(a), (b)).

—police observed the defendant talking on a cell phone while driving a motor vehicle. People v. Nunez, 82 A.D.3d 1128,
920 N.Y.S.2d 146 (2d Dep’t 2011) (applying N.Y. Veh. & Traf. Law § 1225-c(2)(a)).

§ 26. Held evidence insufficient to prove violation
In the following cases, the courts concluded that the evidence was insufficient to prove that a motorist violated a statute
penalizing the use of a portable electronic device while driving a motor vehicle.

New Jersey

State v. Malone, 2011 WL 2582730 (N.J. Super. Ct. App. Div. 2011) Reversing the defendant’s conviction under N.J. Stat.
Ann. 39:4-97.3 for using a wireless telephone or electronic communication device by an operator of a moving motor vehicle
on a public road or highway, the court held that the State did not meet its burden of proving him guilty beyond a reasonable
doubt, where the only evidence was that the defendant was holding his hands-free wireless phone and pressing buttons on the
phone while driving on a public highway, and the statute permits a driver to hold the phone in one hand to activate,
deactivate, or initiate a function of the phone. The court reasoned that the State did not prove that the defendant’s conduct in
pressing buttons or icons constituted using his phone for any unlawful purpose under the statute. Recognizing that the
pressing of buttons with one hand to send a text message is prohibited by the statute, as it does not constitute activating,
deactivating, or initiating a function of the phone, the court found that the State did not prove such an improper use. Where
the same conduct, in this case the pressing of buttons, constitutes both lawful and unlawful activity, the defendant must be
found not guilty, declared the court. Because the State did not prove that the “pressing of buttons” in this instance constituted
a violation of § 39:4-97.3, the court reversed the defendant’s conviction.

New York

Village of Floral Park v Cusmai, NYLJ, 1/5/2004, p. 20, c. 1 The charges under N.Y. Veh. & Traf. Law § 1225-c(2)(b) were
dismissed by the court where the defense offered evidence sufficient to rebut the presumption that the defendant was
“engaged in a call” while operating a motor vehicle in violation of N.Y. Veh. & Traf. Law § 1225-c. The officer testified that
he observed the defendant operating a vehicle with a cell phone about six inches from his ear. The defendant testified that,
thinking that he had an incoming call, he picked up his cell phone and held it at arm’s length with his right hand to view the
screen, but that there was no incoming call. The defendant also had stated that telephone records, if presented, would
demonstrate that no call was made or received at the time of the offense. The court found that though the credible evidence
showed that the officer observed the defendant with a cell phone in his hand while operating a motor vehicle on a public
highway, and what appeared to be a driver on a cell phone, the officer could not testify that the defendant was actually
engaged in a call. The court concluded that the defense was sufficient to rebut the presumption the defendant was “engaged
in a call” under N.Y. Veh. & Traf. Law § 1225-c(2)(b), and accordingly dismissed the charge.6

People v. Hudacek, 26 Misc. 3d 55, 894 N.Y.S.2d 325 (App. Term 2009) Evidence was insufficient to support a
determination that the defendant was holding a mobile telephone up to her ear, rather than activating a hands-free mobile
telephone device by attaching it to her ear, as required to support a conviction under N.Y. Veh. & Traf. Law § 1225-c(2)(a)
for using a mobile telephone to engage in a call while such vehicle was in motion, concluded the court. Although the officer
initially testified to having observed the defendant with a phone in her left hand and up to her left ear, he subsequently stated
that he could not recall noticing a phone in the vehicle. During the officer’s cross-examination, the defendant showed him a
hands-free earpiece and he responded that he did not recall seeing the phone at the stop, but that he wrote the ticket because
he saw her hand up to her ear. The defendant testified that it took two or three seconds to rest the hands-free earpiece on her
ear and that, with long hair, she had to adjust it. The court found that the officer’s testimony, when considered as a whole and
in the light most favorable to the People, created a reasonable doubt with respect to whether the defendant was holding a cell
phone, rather than attaching a Bluetooth device, to her ear.

People v. Riexinger, 40 Misc. 3d 623, 968 N.Y.S.2d 832 (Town Ct. 2013) Having found that N.Y. Veh. & Traf. Law § 1225-
d, prohibiting a motorist’s use of a portable electronic device while operating a motor vehicle, does not encompass the use of
a cell phone as a clock or watch, the court found the defendant not guilty where police testified to observing the defendant
driving while she was holding a cell phone, there was no testimony that the cell phone was anywhere near the defendant’s
ear, the defendant testified that she checked her cell phone for the correct time because her clock was broken and that she was
not texting or communicating on the phone, and exhibits from her phone carrier did not show texting or phone call activity
for the relevant time.

prohibiting anyone from operating a motor vehicle while using any portable electronic device while such vehicle is in
motion, the court was not convinced beyond a reasonable doubt that the defendant was “using” the handheld device in
violation of N.Y. Veh. & Traf. Law § 1225-d(2)(b), or that the defendant violated the prohibitions of N.Y. Veh. & Traf. Law
§ 1225-d(4), where the court found that the defendant was holding the phone to activate his Bluetooth device, and was not
using the device while the vehicle was in motion. The court found as a fact that while the defendant was stopped at a red light
at an intersection, an officer observed the defendant holding a telephone device in his hand at approximately chest level. As
per the defendant’s testimony, the court found that the defendant was holding the phone near the steering wheel, trying to
activate his Bluetooth device.

People v. Abdul-Akim, 27 Misc. 3d 1220(A), 910 N.Y.S.2d 764 (Sup 2010) The court, for purposes of challenging in a
suppression motion the defendant’s stop for allegedly violating N.Y. Veh. & Traf. Law § 1225-c(2), prohibiting a driver’s
use of a cell phone while his car is in motion, found that the People failed to meet their burden of going forward with proof
that the defendant illegally used his cell phone, and in the alternative concluded that the defendant proved the contrary by a
preponderance of the evidence, where the officer testified that the defendant was holding a cell phone in both hands while
driving his vehicle. The court noted that N.Y. Veh. & Traf. Law § 1225-c(2) prohibits a driver using a cell phone while his
car is in motion, but only if the phone is near the driver’s ear; and there was no testimony that while the vehicle was moving
the defendant was using his device as a phone, with the instrument near his ear, and the defendant’s testimony that he parked
his vehicle, exited it, encountered the officer while on the sidewalk, made a call with his cell phone before reentering his car,
and ended the call after returning to his parked car did not suggest that the defendant was speaking on his phone while his car
was in motion.7

People v. Little, 18 Misc. 3d 1126(A), 856 N.Y.S.2d 501 (N.Y. City Crim. Ct. 2008) The court held that a complaint alleging
that the defendant was observed by a police officer talking on a cellular phone while operating a vehicle in violation of N.Y.
Veh. & Traf. Law § 1225-c(2)(a) was fatally deficient, as to be using a mobile telephone in contravention of the statute the
person must be holding a mobile telephone to or in the immediate proximity of the user’s ear. The court noted that N.Y. Veh.
& Traf. Law § 1225-c(3) specifically exempts the use of a hands-free telephone from the proscription of this statute; the
complaint did not indicate that the defendant was actually holding a mobile telephone; and the telephone could have been a
hands-free model.

People v. Deep, 12 Misc. 3d 1137, 821 N.Y.S.2d 381 (N.Y. City Ct. 2006) The court ruled that evidence was insufficient to
convict the defendant of using a cell phone to engage in a call while operating a motor vehicle on a public highway while the
vehicle is in motion in violation of N.Y. Veh. & Traf. Law § 1225-c(2)(a), where the defendant testified that she attempted to
make the call, which did not go through, while she was stopped at a red light, and there was no compelling testimony to
refute this. The court noted that the testimony of the officers supported her statement that at one point she did stop at a red
light. The court found insufficient proof that the defendant was using the phone to engage in a call, as that phrase is defined

in N.Y. Veh. & Traf. Law § 1225-c(1)(f).

Cases:
Officer lacked probable cause or a reasonable suspicion that defendant was violating Indiana no-texting while driving law at
time of traffic stop; officer did not see defendant texting, and what officer had seen, that defendant was holding a cellphone
in his right hand, and that his head was bent toward the phone, was consistent with any one of a number of lawful uses of
cellphones while driving under Indiana law. U.S.C.A. Const.Amend. 4; Ind.Code § 9–21–8–59(a). U.S. v. Paniagua-Garcia,
2016 WL 670162 (7th Cir. 2016) (applying Indiana law).

Electronic dictation device into which defendant was speaking while driving was not a “portable electronic device” within
meaning of statute prohibiting using a portable electronic device while operating a motor vehicle; device that defendant
admitted using did not fall within any of the specific “portable electronic devices” listed in the statute, as the People failed to
establish that its sole function and capability was to do anything more than to store speech for later audio playback and there
was no evidence that the device displayed, sent or received text. McKinney’s Vehicle and Traffic Law § 1225–d. People v.
Ingber, 58 Misc. 3d 49, 66 N.Y.S.3d 785 (App. Term 2017).

Defendant sufficiently rebutted statutory presumption that he was illegally using a mobile telephone while operating a motor
vehicle by testifying that he had not been engaged in a call at the date and time at which a state trooper testified that he
observed defendant holding a mobile phone up to his ear while driving, and by proffering a copy of a portion of his mobile
telephone bill into evidence which confirmed that fact. McKinney’s Vehicle and Traffic Law § 1225–c(2)(a, b). People v.
Wells, 57 Misc. 3d 21, 62 N.Y.S.3d 877 (App. Term 2017).

[Top of Section]
[END OF SUPPLEMENT]
VIII. Statutory Exemptions
§ 27. Exemption for farming or agricultural operations
The following authority addressed whether a defendant’s conduct of using her cell phone while driving was exempt from a
statute prohibiting operating a motor vehicle while using a mobile communication device under an exemption for farming or
agricultural operations.

Cases:
Defendant’s conduct of using her cell phone to talk to her father, the owner of their family farm, to coordinate deliveries of
pork products to various stores and restaurants was for the purpose of “farming or agricultural operations” and thus was
exempt from statute prohibiting operating a motor vehicle while using a mobile communication device; exemption for
farming or agricultural operations was not limited only to production phase of a farm business. Or. Rev. Stat. § 811.507(3)
(b). State v. Bennett, 287 Or. App. 338, 2017 WL 3611687 (2017).

[Top of Section]
[END OF SUPPLEMENT]
Graphical Analysis
Image 1 within document in PDF format.

________________________________________________________________________________________________________________
RESEARCH REFERENCES
West’s Key Number Digest
1 West’s Key Number Digest, Automobiles 327, 353(3), 355(1), 355(3)
Westlaw Search Query
1 (”MOTOR VEHICLE” AUTO AUTOMOBILE CAR TRUCK MOTORIST DRIVER /P “PORTABLE ELECTRONIC
DEVICE”) (DRIVING /5 TEXT!) & DA (AFT 08/07/2015)
A.L.R. Library
1 A.L.R. Index, Automobiles and Highway Traffic

1 A.L.R. Index, Telecommunications

1 A.L.R. Index, Text Messages
1 A.L.R. Index, Traffic Offenses and Violations
1 West’s A.L.R. Digest, Automobiles 327, 355(3)
1 Civil Liability Arising from Cell Phone or Smartphone Use While in Traffic, 53 A.L.R.7th Art. 4
1 Validity of Use of Cellular Telephone or Tower to Track Prospective, Real Time, or Historical Position of Possessor of
Phone Under State Law, 94 A.L.R.6th 579
1 Establishment of Negligence Within Meaning of Statute Penalizing Negligent Homicide by Operation of Motor Vehicle—
Speeding or Driving at Unsafe Speed, 84 A.L.R.6th 427
1 Validity of Search of Wireless Communication Devices, 62 A.L.R.6th 161
1 What Constitutes “Custodial Interrogation” by Police Officer Within Rule of Miranda v. Arizona Requiring That Suspect
Be Informed of His or Her Federal Constitutional Rights Before Custodial Interrogation—In Nonpolice Vehicle for
Traffic Stop, 56 A.L.R.6th 323.
1 What Constitutes “Custodial Interrogation” by Police Officer Within Rule of Miranda v. Arizona Requiring That Suspect
Be Informed of His or Her Federal Constitutional Rights Before Custodial Interrogation—At Nonpolice Vehicle for
Traffic Stop, Where Defendant Outside, But in Immediate Vicinity of Vehicle, or Where Unspecified as to Whether Inside
or Outside of Nonpolice Vehicle, 55 A.L.R.6th 513
1 Civil Liability Arising from Use of Cell Phone While Driving, 36 A.L.R.6th 443
1 Authentication of Electronically Stored Evidence, Including Text Messages and E-mail, 34 A.L.R.6th 253
1 Applicability of Insurance Policies to Alleged Bodily Injury Arising from Use of Cellular Telephones, 32 A.L.R.6th 505
1 Expectation of Privacy in Text Transmissions to or from Pager, Cellular Telephone, or Other Wireless Personal
Communications Device, 25 A.L.R.6th 201
1 What Constitutes “Use” or “Operation” Within Statute Making Owner of Motor Vehicle Liable for Negligence in its Use
or Operation, 103 A.L.R.5th 339
Legal Encyclopedias
1 Am. Jur. 2d, Automobiles and Highway Traffic [WestlawNext® Search Query]
1 C.J.S., Motor Vehicles [WestlawNext® Search Query]
Trial Strategy
1 Criminal Pretrial Involving Text Messaging Evidence, 116 Am. Jur. Proof of Facts 3d 345
1 Use of Call Detail Record Evidence in Telecommunications “Phantom Traffic” and Other Litigation, 86 Am. Jur. Proof of
Facts 3d 217
1 Driver’s Failure to Maintain Proper Lookout, 40 Am. Jur. Proof of Facts 2d 411
1 Civil Liability for Text Messaging, 121 Am. Jur. Trials 433
1 Causes of Action Arising out of Cell Phone Use While Operating a Motor Vehicle, 35 Causes of Action 2d 151

Law Reviews and Other Periodicals
1 Franklin, Done With Distracted Driving: Implications of Pennsylvania’s Ban on Text-Based Communication While
Driving Under the State Constitution, 117 Penn St. L. Rev. 171 (2012).
1 Gershowitz, Texting While Driving Meets the Fourth Amendment: Deterring Both Texting and Warrantless Cell Phone
Searches, 54 Ariz. L. Rev. 577 (Fall 2012)
1 Potts, Throwing Truckers Under The Bus? An Evaluation of the Federal Ban on Hand-Held Mobile Telephone Use by
Operators of Commercial Motor Vehicles, 41 Transp. L.J. 33 (2014).
1 Schofield, Texas, Are We There Yet? A Roadmap for Implementing and Enforcing a Future Texting-While-Driving Ban,
15 Tex. Tech. Admin. L.J. 399 (Summer, 2014)
1 Weaver and Friedland, Driving While ‘Intexticated’: Texting, Driving, and Punishment, 47 Tex. Tech L. Rev. 101 (Fall,
2014)
Additional References
1 Appellate Materials, Appellant’s Opening Brief [People v. Spriggs], 2013 WL 3190286

1 Distracted Driving, http://www.distraction.gov
1 Distracted Driving—Federal Motor Carrier Safety Administration, http://www.fmcsa.dot.gov/driver-safety/distracted-
driving
________________________________________________________________________________________________________________
Table of Cases, Laws, and Rules
United States
U.S. Const. Amend. XIV. See 6
47 C.F.R. § 20.3. See 7
47 C.F.R. § 97.1(a). See 7
49 C.F.R. § 392.80. See 2
Seventh Circuit
U.S. v. Paniagua-Garcia, 2015 WL 631395 (S.D. Ind. 2015) — 3
Alaska
Alaska Stat. § 28.35.161. See 12
State v. Adams, 2013 WL 5973899 (Alaska Ct. App. 2013) — 12
California
Cal. Veh. Code § 23123. See 10, 19, 25
Cal. Veh. Code § 23123(a). See 10, 11, 19, 25
Cal. Veh. Code § 23123.5. See 25
Cal. Veh. Code § 23123.5(a). See 25
People v. Barnes, 2013 WL 366221 (Cal. App. 3d Dist. 2013) — 25
People v. Calderon, 2012 WL 172452 (Cal. App. 2d Dist. 2012) — 25

People v. Corrales, 213 Cal. App. 4th 696, 152 Cal. Rptr. 3d 667 (2d Dist. 2013) — 25
People v. Nelson, 200 Cal. App. 4th 1083, 132 Cal. Rptr. 3d 856 (1st Dist. 2011) — 19, 25
People v. Spriggs, 224 Cal. App. 4th 150, 168 Cal. Rptr. 3d 347 (5th Dist. 2014) — 10, 11
Indiana
Ind. Code Ann. § 9-21-8-59. See 3
U.S. v. Paniagua-Garcia, 813 F.3d 1013 (7th Cir. 2016) (applying Indiana law) — 26
New Jersey
N.J. Stat. Ann. 39:4-97.3. See 14, 15, 16, 26
N.J. Stat. Ann. 39:4-97.3(a). See 13, 16
N.J. Stat. Ann. 39:4-97.3(b). See 13
State v. Malone, 2011 WL 2582730 (N.J. Super. Ct. App. Div. 2011) — 13, 14, 15, 16, 26
New York
N.Y. Veh. & Traf. Law § 129-b. See 20
N.Y. Veh. & Traf. Law § 134. See 20
N.Y. Veh. & Traf. Law § 1100. See 20
N.Y. Veh. & Traf. Law § 1100(a). See 20
N.Y. Veh. & Traf. Law § 1225-c. See 5, 6, 7, 10, 13, 17, 20, 21, 22, 23, 24, 25, 26
N.Y. Veh. & Traf. Law § 1225-c(1)(a). See 7
N.Y. Veh. & Traf. Law § 1225-c(1)(b). See 7
N.Y. Veh. & Traf. Law § 1225-c(1)(e). See 4, 13, 17
N.Y. Veh. & Traf. Law § 1225-c(1)(f). See 8, 11, 22, 24, 26
N.Y. Veh. & Traf. Law § 1225-c(2). See 20, 21, 22, 25, 26
N.Y. Veh. & Traf. Law § 1225-c(2)(a). See 4, 7, 8, 11, 17, 18, 20, 21, 22, 23, 24, 25, 26
N.Y. Veh. & Traf. Law § 1225-c(2)(a), (b). See 25
N.Y. Veh. & Traf. Law § 1225-c(2)(b). See 21, 22, 24, 26
N.Y. Veh. & Traf. Law § 1225-c(3). See 17, 26
N.Y. Veh. & Traf. Law § 1225-c(3)(a). See 6
N.Y. Veh. & Traf. Law § 1225-c(3)(c). See 17
N.Y. Veh. & Traf. Law § 1225-c(f). See 10
N.Y. Veh. & Traf. Law § 1225-d. See 7, 9, 10, 13, 18, 23, 26
N.Y. Veh. & Traf. Law § 1225-d(1). See 11
N.Y. Veh. & Traf. Law § 1225-d(2)(b). See 9, 10, 18, 22, 26
N.Y. Veh. & Traf. Law § 1225-d(4). See 9, 10, 18, 21, 22, 26
Floral Park, Village of v Cusmai, NYLJ, 1/5/2004 — 26
Matievskaya v. State Dept. of Motor Vehicles, 121 A.D.3d 694, 993 N.Y.S.2d 569 (2d Dep’t 2014) — 25
People v. Abdul-Akim, 27 Misc. 3d 1220(A), 910 N.Y.S.2d 764 (Sup 2010) — 26
People v. A.N., 44 Misc. 3d 269, 985 N.Y.S.2d 835 (N.Y. City Ct. 2014) — 9, 10, 21, 22
People v. Bozak, 29 Misc. 3d 711, 907 N.Y.S.2d 632 (N.Y. City Ct. 2010) — 7
People v. Campanaro, 19 Misc. 3d 1116(A), 862 N.Y.S.2d 816 (N.Y. City Ct. 2008) — 21, 22, 24, 26
People v. Deep, 12 Misc. 3d 1137, 821 N.Y.S.2d 381 (N.Y. City Ct. 2006) — 8, 18, 26
People v. East, 119 A.D.3d 1370, 988 N.Y.S.2d 394 (4th Dep’t 2014) — 25
People v. Ermmarino, 60 Misc. 3d 50, 80 N.Y.S.3d 845 (App. Term 2018) — 14
People v. Fortini, 47 Misc. 3d 1218(A), 17 N.Y.S.3d 384 (N.Y. City Ct. 2015) — 11
People v. Gay, 18 Misc. 3d 1114(A), 856 N.Y.S.2d 501 (J. Ct. 2008) — 17
People v. Goldstein, 36 Misc. 3d 1214(A), 957 N.Y.S.2d 265 (J. Ct. 2012) — 13, 18, 26
People v. Hudacek, 26 Misc. 3d 55, 894 N.Y.S.2d 325 (App. Term 2009) — 13, 26
People v. Ingber, 58 Misc. 3d 49, 66 N.Y.S.3d 785 (App. Term 2017) — 26
People v. Keith, 17 Misc. 3d 128(A), 851 N.Y.S.2d 65 (App. Term 2007) — 23, 24
People v. Little, 18 Misc. 3d 1126(A), 856 N.Y.S.2d 501 (N.Y. City Crim. Ct. 2008) — 26
People v. Meijuan Shao, 20 Misc. 3d 133(A), 867 N.Y.S.2d 19 (App. Term 2008) — 23, 24
People v. Moore, 196 Misc. 2d 340, 765 N.Y.S.2d 218 (J. Ct. 2003) — 20

People v. Neville, 190 Misc. 2d 432, 737 N.Y.S.2d 251 (J. Ct. 2002) — 4, 5, 6
People v. Nunez, 82 A.D.3d 1128, 920 N.Y.S.2d 146 (2d Dep’t 2011) — 25
People v. Olsen, 124 A.D.3d 1084, 1 N.Y.S.3d 555 (3d Dep’t 2015) — 23
People v. Raffa, 31 Misc. 3d 8, 919 N.Y.S.2d 267 (App. Term 2011) — 7
People v. Riexinger, 40 Misc. 3d 623, 968 N.Y.S.2d 832 (Town Ct. 2013) — 10, 26
People v. Smith, 24 Misc. 3d 1212(A), 890 N.Y.S.2d 370 (N.Y. City Ct. 2009) — 17, 24
People v. Tzotzchev, 43 Misc. 3d 138(A), 992 N.Y.S.2d 160 (App. Term 2014) — 23
People v. Vogt, 70 Misc. 3d 30, 135 N.Y.S.3d 751 (App. Term 2020) — 21, 23
People v. Wells, 57 Misc. 3d 21, 62 N.Y.S.3d 877 (App. Term 2017) — 26
Peterson v. State, Dept. of Motor Vehicles, 90 A.D.3d 1055, 934 N.Y.S.2d 837 (2d Dep’t 2011) — 25
Smilow v. New York State Dept. of Motor Vehicles, 95 A.D.3d 1023, 944 N.Y.S.2d 248 (2d Dep’t 2012) — 17, 21, 22, 25
Snitow v. New York State Dept. of Motor Vehicles, 121 A.D.3d 1008, 996 N.Y.S.2d 55 (2d Dep’t 2014) — 21, 22, 25
Tornheim v. Appeals Bd. of New York State Dept. of Motor Vehicles, 82 A.D.3d 1253, 919 N.Y.S.2d 863 (2d Dep’t 2011)
— 25
Oregon
State v. Bennett, 287 Or. App. 338, 402 P.3d 732 (2017) — 11, 27
Westlaw. © 2021 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
Footnotes
1
As to cases discussing the charge of reckless driving, see What amounts to reckless driving of motor vehicle within
statute making such a criminal offense, 52 A.L.R.2d 1337, and Statute prohibiting reckless driving: Definiteness and
certainty, 52 A.L.R.4th 1161.
2
Schofield, Texas, Are We There Yet? A Roadmap for Implementing and Enforcing a Future Texting-While-Driving
Ban, 15 Tex. Tech. Admin. L.J. 399 (2014).
3
Distracted Driving, http://www.distraction.gov.
4
49 C.F.R. § 392.80.
5
U.S. v. Paniagua-Garcia, 2015 WL 631395 (S.D. Ind. 2015) (police deputy’s observations of the defendant driving a
vehicle while holding a phone in his hand with his head tilted down toward the phone, and apparently operating the
key pad of the phone, made it reasonable for the deputy to conclude that the defendant had violated Ind. Code Ann. §
9-21-8-59 by texting while driving, despite that it was now agreed that the defendant had not been texting, based on an
inspection of the defendant’s phone demonstrating that no text messages were sent or received during the time in
question).
6
The unpublished opinion is discussed in People v. Campanaro, 19 Misc. 3d 1116(A), 862 N.Y.S.2d 816 (N.Y. City Ct.
2008) (unpublished Table disposition; 2008 WL 932701).
7
The court noted that the fact that the defendant was holding the phone in both hands would suggest that he was using
the cell phone to text message, but that a driver’s use of a phone to text message was not made illegal until the
enactment of N.Y. Veh. & Traf. Law § 1225-d, effective well after the arrest in this case.
End of Document © 2021 Thomson Reuters. No claim to original U.S. Government

Works.

Criminal and Quasi-Criminal Liabili..., 5 A.L.R.7th Art. 3 (Originally published in 2015)
Citing References (17)
Title Date Type Depth

1. Civil Liability Arising from Cell Phone or Smartphone Use While in 2020 ALR —
Traffic
53 A.L.R.7th Art. 4
In general, documents created in anticipation of litigation are considered “work
product,” or “trial preparation” materials, and are protected from discovery. The
purpose of the...
2. Expectation of Privacy in Text Transmissions to or from Pager, 2007 ALR —

Cellular Telephone, or Other Wireless Personal Communications Device
25 A.L.R.6th 201
The Fourth Amendment guarantees “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures.” The Supreme...
3. Validity of Search of Wireless Communication Devices 2011 ALR —

62 A.L.R.6th 161
The Fourth Amendment of the United States Constitution, U.S. Const. Amend.
IV, prohibits unreasonable searches and seizures. The Supreme Court of Ohio,
in State v. Smith, 124 Ohio...
4. Applicability of Insurance Policies to Alleged Bodily Injury Arising 2008 ALR —

from Use of Cellular Telephones
32 A.L.R.6th 505
Cellular telephones have become ubiquitous in modern life. While they are
undeniably convenient, some unsettled questions may remain concerning the
health effects of the radio...
5. Authentication of Electronically Stored Evidence, Including Text 2008 ALR —

Messages and E-mail
34 A.L.R.6th 253
As a preliminary step to the admittance of documentary evidence, there must
be authentication, which involves introduction of evidence sufficient to
demonstrate that the writing is...
6. What Constitutes “Custodial Interrogation” by Police Officer Within 2010 ALR —

Rule of Miranda v. Arizona Requiring That Suspect Be Informed of His or
Her Federal Constitutional Rights Before Custodial Interrogation--At
Nonpolice Vehicle for Traffic Stop, Where Defendant Outside, But in
Immediate Vicinity of Vehicle, or Where Unspecified as to Whether Inside
or Outside of Nonpolice Vehicle
55 A.L.R.6th 513
In Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10
A.L.R.3d 974 (1966), the United States Supreme Court held that the Fifth
Amendment privilege against...


7. What Constitutes “Custodial Interrogation” by Police Officer Within 2010 ALR —
Rule of Miranda v. Arizona Requiring That Suspect Be Informed of His or
Her Federal Constitutional Rights Before Custodial Interrogation--In
Nonpolice Vehicle for Traffic Stop
56 A.L.R.6th 323
Miranda warnings are due only when a suspect interrogated by the police is in
“custody.” The issue arises as to what constitutes “custodial interrogation” by a
police officer...
8. Establishment of Negligence Within Meaning of Statute Penalizing 2013 ALR —

Negligent Homicide by Operation of Motor Vehicle--Speeding or Driving
at Unsafe Speed
84 A.L.R.6th 427
The killing of a person by means of the operation of a motor vehicle can
constitute criminally negligent homicide if the circumstances of the death fit the
statutory elements of...
9. Validity of Use of Cellular Telephone or Tower to Track Prospective, 2014 ALR —

Real Time, or Historical Position of Possessor of Phone Under State Law
94 A.L.R.6th 579
Cellular telephones (”cell phones”) are a pervasive feature of modern American
life. Most American adults own cell phones, and cell-phone users tend to keep
their cell phones close...
10. What Constitutes “Use” or “Operation” Within Statute Making Owner 2002 ALR —
of Motor Vehicle Liable for Negligence in its Use or Operation
103 A.L.R.5th 339
At common law, typically the owner of a motor vehicle was not liable for the
negligent operation of the vehicle by an individual using it, unless the person
was an employee or...
11. 93 Causes of Action 2d 367, Cause of Action Arising Out of Cell 2021 Other —
Phone Use While Operating Motor Vehicle Secondary
Source
This article discusses a claim by a plaintiff injured by a driver who was using a
cell phone at the time of the accident. Included within this topic are plaintiffs
who are...
12. West’s A.L.R. Digest 48AK327,  327. Equipment in general 2021 Other —
West’s A.L.R. Digest Secondary
Source
13. West’s A.L.R. Digest 48AK355(3),  355(3). Equipment 2021 Other —
West’s A.L.R. Digest Secondary
Source
14. Witkin, California Criminal Law 4th Crimes Against Public Peace and 2021 Other —
Welfare s 326, Using Wireless Communication Devices. Secondary
Witkin, California Criminal Law 4th Crimes Against Public Peace and Welfare Source
(1) Telephones. A person may not drive a motor vehicle while using a wireless
telephone unless the telephone is specifically designed and configured to allow
hands-free listening...


15. Maryland Law Encyclopedia Autos & Motor Vehicles s 290, § 290. “Hit 2021 Other —
and run” and duty to assist offenses Secondary
Maryland Law Encyclopedia Autos & Motor Vehicles Source
The duty of a driver to remain at the scene of an accident resulting in bodily
injury or death, and the criminal penalty for a failure to do so, is set forth by
statute. A person...
16. Maryland Law Encyclopedia Autos & Motor Vehicles s 291, § 291. 2021 Other —
Other offenses Secondary
Maryland Law Encyclopedia Autos & Motor Vehicles Source
A person commits a criminal offense if the person violates either the statutes
prohibiting texting while operating a motor vehicle or prohibiting using a
cellphone while operating...
17. Injunction-Preliminary Injunctive Relief-Irreparable Harm-Standing- 2017 Other —

Justiciability Secondary
Source
Where the city abandons any claim to collect a fine and the defendant driver
can show no likelihood of future enforcement of the ordinance against her, she
has no standing to seek...

Table of Authorities (54)
Treatment Referenced Title Type Depth Page

Number
— 1. Applicability of Insurance Policies to Alleged Secondary — 3
Bodily Injury Arising from Use of Cellular Source
Telephones
Applicability of Insurance Policies to Alleged Bodily
Injury Arising from Use of Cellular Telephones
2008 WL 564609, 2008
Cellular telephones have become ubiquitous in
modern life. While they are undeniably convenient,
some unsettled questions may remain concerning
the health effects of the radio...
— Secondary — 3
2. Authentication of Electronically Stored
Source
Evidence, Including Text Messages and E-mail
Authentication of Electronically Stored Evidence,
Including Text Messages and E-mail
2008 WL 1882882, 2008
As a preliminary step to the admittance of
documentary evidence, there must be
authentication, which involves introduction of
evidence sufficient to demonstrate that the writing
is...
— 3. Civil Liability Arising from Cell Phone or Secondary — 3

Smartphone Use While in Traffic Source
Civil Liability Arising from Cell Phone or Smartphone
Use While in Traffic
2020 WL 3964383, 2020
In general, documents created in anticipation of
litigation are considered “work product,” or “trial
preparation” materials, and are protected from
discovery. The purpose of the...
— 4. Civil Liability Arising from Use of Cell Secondary — 3

Source
Phone While Driving
Civil Liability Arising from Use of Cell Phone While
Driving
2008 WL 2940528, 2008
This article has been superseded by the following
article(s): Superseded by Civil Liability Arising from
Cell Phone or Smartphone Use While in Traffic, 53
A.L.R.7th Art. 4


Number
— 5. Establishment of Negligence Within Meaning Secondary — 3
of Statute Penalizing Negligent Homicide by Source
Operation of Motor Vehicle--Speeding or Driving
at Unsafe Speed
Establishment of Negligence Within Meaning of
Statute Penalizing Negligent Homicide by Operation
of Motor Vehicle--Speeding or Driving at Unsafe
Speed
2013 WL 1845526, 2013
The killing of a person by means of the operation of
a motor vehicle can constitute criminally negligent
homicide if the circumstances of the death fit the
statutory elements of...
— 6. Expectation of Privacy in Text Transmissions Secondary — 3

to or from Pager, Cellular Telephone, or Other Source
Wireless Personal Communications Device
Expectation of Privacy in Text Transmissions to or
from Pager, Cellular Telephone, or Other Wireless
Personal Communications Device
2007 WL 1964182, 2007
The Fourth Amendment guarantees “[t]he right of
the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches
and seizures.” The Supreme...
— 7. Matievskaya v. State Dept. of Motor Vehicles Case — 3+

993 N.Y.S.2d 569, N.Y.A.D. 2 Dept., 2014
TRANSPORTATION - Motor Vehicles. Driver’s
failure to present purported evidence to ALJ
precluded submission for first time in Article 78
proceedings.
— 8. People v. A.N. Case — 3+

985 N.Y.S.2d 835, N.Y.City Ct., 2014
CRIMINAL JUSTICE - Traffic Offenses. Defendant’s
testimony did not overcome presumption that he
was using the portable electronic device he was
holding.
— 9. People v. Abdul-Akim Case — 3+

910 N.Y.S.2d 764, N.Y.Sup., 2010
Defendants are charged under Indictment 5518/09
with Criminal Possession of a Weapon in the
Second Degree [PL § 265.03(3) ] and in the Fourth
Degree [PL § 265.01(1) ]. Defendant...


Number
— 10. People v. Barnes Case — 3+
2013 WL 366221, Cal.App. 3 Dist., 2013

After an evidentiary hearing, the magistrate granted
defendant Richard Barnes’s motion to suppress
evidence obtained during a traffic stop and ensuing
search of his person. After...
— 11. People v. Bozak Case — 3+

907 N.Y.S.2d 632, N.Y.City Ct., 2010
CRIMINAL JUSTICE - Traffic Offenses. Amateur
radio device was not a “mobile telephone” under
statute prohibiting talking on a mobile telephone
while driving.
— Case — 3+
12. People v. Calderon
2012 WL 172452, Cal.App. 2 Dist., 2012
After appellant’s suppression motion was denied, he
negotiated a plea agreement by which he was
convicted of possession of 20 kilograms of cocaine
for sale (count 1) and possession...
— 13. People v. Campanaro Case — 3+

862 N.Y.S.2d 816, N.Y.City Ct., 2008
Officer Michael Maney testified that at 7:23 p.m. on
October 19, 2007 while on routine road patrol he
parked his patrol vehicle about 25 feet off the road
to observe traffic...
— 14. People v. Corrales Case — 3+
152 Cal.Rptr.3d 667, Cal.App. 2 Dist., 2013

CRIMINAL JUSTICE — Investigatory Stop. Officer
had reasonable suspicion that defendant motorist
was illegally texting while driving which justified
investigatory stop.
— 15. People v. Deep Case — 3+

821 N.Y.S.2d 381, N.Y.City Ct., 2006
CRIMINAL JUSTICE - Evidence. Document
reflecting measurement of defendant’s speed taken
by lidar equipment was a business record.


Number
— 16. People v. East Case — 3+
988 N.Y.S.2d 394, N.Y.A.D. 4 Dept., 2014
CRIMINAL JUSTICE - Arrest. Officer’s observation
of handgun in plain view by driver’s seat during
traffic stop provided probable cause for arrest.
— 17. People v. Ermmarino Case — 3+

80 N.Y.S.3d 845, N.Y.Sup.App.Term, 2018
TRANSPORTATION — Motor Vehicles. Verdict in
nonjury trial convicting defendant of operating
vehicle while using mobile telephone was not
against the weight of the evidence.
— 18. People v. Fortini Case — 3+

17 N.Y.S.3d 384, N.Y.City Ct., 2015
A non-jury trial was held on the above-captioned
matter on April 24, 2015. Defendant, RAINA L.
FORTINI, was charged with operating a motor
vehicle on a public highway while using a...
— 19. People v. Gay Case — 3+

856 N.Y.S.2d 501, N.Y.Just.Ct., 2008
The defendant was charged with using a mobile
telephone while operating a motor vehicle on a
public highway in violation of VTL 1225–c(2)(a) on
October 22, 2007.The defendant was...
— 20. People v. Goldstein Case — 3+
957 N.Y.S.2d 265, N.Y.Just.Ct., 2012

This matter came before the Court for Trial held on
May 15, 2012 as a result of the issuance of a
Simplified Traffic Information No. BD2103422 by the
Police Department of the...
— 21. People v. Hudacek Case — 3+

TRANSPORTATION - Motor Vehicles. Defendant’s
conviction for using mobile telephone while driving
was not supported by sufficient evidence.


Number
— 22. People v. Ingber Case — 3+
CRIMINAL JUSTICE - Traffic Offenses. Device was
not a portable electronic device within meaning of
statute prohibiting using such while operating a
motor vehicle.
— 23. People v. Keith Case — 3+

Judgments of conviction (Stella Schindler, J.),
rendered September 6, 2005, affirmed. The verdicts
were supported by legally sufficient evidence and
were not against the weight of...
— 24. People v. Little Case — 3+

856 N.Y.S.2d 501, N.Y.City Crim.Ct., 2008
Defendant’s Motion to Dismiss for Facial
Insufficiency Defendant moves to dismiss this action
alleging that the information is facially insufficient
pursuant to CPL 170.30 and...
— 25. People v. Meijuan Shao Case — 3+

Appeal from a judgment of the Justice Court of the
Village of Wappingers Falls, Dutchess County
(Raymond C. Chase, J.), rendered June 8, 2007.
The judgment convicted defendant,...
— 26. People v. Moore Case — 3+

765 N.Y.S.2d 218, N.Y.Just.Ct., 2003
GOVERNMENT - Highways and Roads. Privately
owned parking lot was not “public highway” within
meaning of Vehicle and Traffic Law.
— 27. People v. Nelson Case — 3+

CRIMINAL JUSTICE - Traffic Offenses. Use of
telephone at traffic light was done “while driving” in
violation of Vehicle Code.
— 28. People v. Neville Case — 3+

737 N.Y.S.2d 251, N.Y.Just.Ct., 2002
CRIMINAL JUSTICE - Traffic Offenses. Statute
prohibiting use of cell phone while driving was not
vague or overbroad.


Number
— 29. People v. Nunez Case — 3+
920 N.Y.S.2d 146, N.Y.A.D. 2 Dept., 2011

CRIMINAL JUSTICE - Verdicts. Verdict in first-
degree assault case was not repugnant despite
acquittal on weapons charges.
— 30. People v. Olsen Case — 3+

1 N.Y.S.3d 555, N.Y.A.D. 3 Dept., 2015
CRIMINAL JUSTICE - Homicide. Verdict finding
defendant guilty of criminally negligent homicide
was not against weight of the evidence.
— 31. People v. Raffa Case — 3+

CRIMINAL JUSTICE - Traffic Offenses. Defendant’s
conviction for operating motor vehicle while using
mobile telephone was not supported by evidence.
— 32. People v. Riexinger Case — 3+
968 N.Y.S.2d 832, N.Y.Town Ct., 2013

TRANSPORTATION - Motor Vehicles. Using cell
phone as clock does not violate state traffic law.
— 33. People v. Smith Case — 3+

890 N.Y.S.2d 370, N.Y.City Ct., 2009
The defendant, Deborah Smith, is charged with
Operating a Motor Vehicle While Using a Mobile
Phone, an alleged violation of VTL § 1225(c)(2)(a).
The Court held a non-jury hearing...
— 34. People v. Spriggs Case — 3+

TRANSPORTATION — Motor Vehicles. Offense of
using wireless telephone while driving applies only
to engaging in conversation.
— 35. People v. Tzotzchev Case — 3+

ORDERED that the judgment of conviction is
affirmed. Defendant was charged in a simplified
traffic information with using a mobile telephone
while operating a motor vehicle...


Number
— 36. People v. Vogt Case — 3+
CRIMINAL JUSTICE — Traffic Offenses. Trooper’s
testimony supported conviction for using phone
while driving, though he could not state what
defendant was doing with phone when...
— 37. People v. Wells Case — 3+

CRIMINAL JUSTICE - Traffic Offenses. Defendant
rebutted statutory presumption that he was illegally
using a mobile telephone while operating a motor
vehicle.
— 38. Peterson v. State, Dept. of Motor Vehicles Case — 3+

934 N.Y.S.2d 837, N.Y.A.D. 2 Dept., 2011
ADJUDGED that the determination dated October
12, 2010, is confirmed, the petition is denied, and
the proceeding is dismissed on the merits, with
costs. The determination that the...
— 39. Smilow v. New York State Dept. of Motor Case — 3+

Vehicles
944 N.Y.S.2d 248, N.Y.A.D. 2 Dept., 2012
TRANSPORTATION - Motor Vehicles. Use of
“speaker enabled iPhone” while driving by using one
of his hands to hold that device violated VTL
provision.
— 40. Snitow v. New York State Dept. of Motor Case — 3+

Vehicles
996 N.Y.S.2d 55, N.Y.A.D. 2 Dept., 2014
TRANSPORTATION - Motor Vehicles. Substantial
evidence supported determination that motorist
operated vehicle on public highway while using
mobile telephone.
— 41. State v. Adams Case — 3+

2013 WL 5973899, Alaska App., 2013
In this appeal, we are asked to construe former AS
28.35.161 and determine if the former statute
prohibited text-messaging while driving. On April 29,
2011, Tyler S. Adams was...


Number
— 42. State v. Bennett Case — 3+
402 P.3d 732, Or.App., 2017
CRIMINAL JUSTICE — Reckless Driving.
Defendant’s use of cell phone while driving was for
farming or agriculture and thus was exempt from
statutory prohibition.
— 43. State v. Malone Case — 3+

2011 WL 2582730, N.J.Super.A.D., 2011
Following a trial de novo in the Law Division,
defendant Elliott Malone appeals from his conviction
on a charge of improper use of a cell phone while
driving, N.J.S.A. 39:4–97.3....
— 44. Statute prohibiting reckless driving: Secondary — 3

Definiteness and certainty Source
Statute prohibiting reckless driving: Definiteness and
certainty
1987 WL 419625, 1987
This annotation collects and analyzes those state
and federal cases in which the courts have
considered whether a reckless driving statute was
so indefinite and uncertain as to be...
— 45. Appellant’s Opening Brief Appellate Court — 3

Steven R. SPRIGGS, Defendant and Appellant, v. Document
THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent.
2013 WL 3190286, Cal.App. 5 Dist., 2013
FN1. The Opinion is file stamped March 21, 2013,
but the Opinion was not served by mail until March
29, 2013 and the on-line court docket states that the
Opinion was both filed and...
— 46. Tornheim v. Appeals Bd. of New York State Case — 3+

Dept. of Motor Vehicles
919 N.Y.S.2d 863, N.Y.A.D. 2 Dept., 2011
Proceeding pursuant to CPLR article 78 to review a
determination of the Appeals Board of the New York
State Department of Motor Vehicles dated
December 17, 2008, which affirmed a...


Number
— 47. U.S. v. Paniagua-Garcia Case — 3+
--- F.3d ----, 7th Cir.(Ind.), 2016

CRIMINAL JUSTICE - Investigatory Stop. Officer
lacked probable cause or a reasonable suspicion
that defendant was violating Indiana no-texting while
driving law at time of traffic...
— 48. U.S. v. Paniagua-Garcia Case — 3+
2015 WL 631395, S.D.Ind., 2015

Presently pending before the Court is Defendant
Gregorio Paniagua–Garcia’s Motion to Suppress.
[Filing No. 41.] Mr. Paniagua–Garcia asks the Court
to suppress evidence obtained...
— 49. Validity of Search of Wireless Secondary — 3

Communication Devices Source
Validity of Search of Wireless Communication
Devices
2011 WL 677445, 2011
The Fourth Amendment of the United States
Constitution, U.S. Const. Amend. IV, prohibits
unreasonable searches and seizures. The Supreme
Court of Ohio, in State v. Smith, 124 Ohio...
— 50. Validity of Use of Cellular Telephone or Secondary — 3

Tower to Track Prospective, Real Time, or Source
Historical Position of Possessor of Phone Under
State Law
Validity of Use of Cellular Telephone or Tower to
Track Prospective, Real Time, or Historical Position
of Possessor of Phone Under State Law
2014 WL 1758207, 2014
Cellular telephones (”cell phones”) are a pervasive
feature of modern American life. Most American
adults own cell phones, and cell-phone users tend
to keep their cell phones close...
— 51. What amounts to reckless driving of motor Secondary — 3

vehicle within statute making such a criminal Source
offense
What amounts to reckless driving of motor vehicle
within statute making such a criminal offense
1957 WL 11671, 1957
This annotation supplements one in 86 A.L.R. 1273.
What constitutes operation of an automobile so as
to endanger life, limb, or property within a statute
expressly prohibiting such...


Number
— 52. What Constitutes “Custodial Interrogation” Secondary — 3
by Police Officer Within Rule of Miranda v. Source
Arizona Requiring That Suspect Be Informed of
His or Her Federal Constitutional Rights Before
Custodial Interrogation--At Nonpolice Vehicle for
Traffic Stop, Where Defendant Outside, But in
Immediate Vicinity of Vehicle, or Where
Unspecified as to Whether Inside or Outside of
Nonpolice Vehicle
What Constitutes “Custodial Interrogation” by Police
Officer Within Rule of Miranda v. Arizona Requiring
That Suspect Be Informed of His or Her Federa...
2010 WL 2671272, 2010
In Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602,
16 L. Ed. 2d 694, 10 A.L.R.3d 974 (1966), the
United States Supreme Court held that the Fifth
Amendment privilege against...
— 53. What Constitutes “Custodial Interrogation” Secondary — 3

by Police Officer Within Rule of Miranda v. Source
Arizona Requiring That Suspect Be Informed of
His or Her Federal Constitutional Rights Before
Custodial Interrogation--In Nonpolice Vehicle for
Traffic Stop
What Constitutes “Custodial Interrogation” by Police
Officer Within Rule of Miranda v. Arizona Requiring
That Suspect Be Informed of His or Her Federa...
2010 WL 2977833, 2010
Miranda warnings are due only when a suspect
interrogated by the police is in “custody.” The issue
arises as to what constitutes “custodial
interrogation” by a police officer...
— 54. What Constitutes “Use” or “Operation” Secondary — 3

Within Statute Making Owner of Motor Vehicle Source
Liable for Negligence in its Use or Operation
What Constitutes “Use” or “Operation” Within
Statute Making Owner of Motor Vehicle Liable for
Negligence in its Use or Operation
2002 WL 31398975, 2002
At common law, typically the owner of a motor
vehicle was not liable for the negligent operation of
the vehicle by an individual using it, unless the
person was an employee or...

History
There are no History results for this citation.

Liability for Using Electronic Devices While Driving

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Liability for Using Electronic Devices While Driving

Uploaded by

Copyright:

Available Formats

Criminal and Quasi-Criminal Liability Arising from Use of..., 5 A.L.R.7th Art. 3...

5 A.L.R.7th Art. 3 (Originally published in 2015)

Table of Cases, Laws, and Rules

1 § 2 Background and summary

II Validity of Statutes Penalizing Use of Portable Electronic Device While Driving

1 III Liability for Using Handheld Device While Driving

1 § 7 Using amateur radio device

1 § 8 Making failed attempted call

© 2021 Thomson Reuters. No claim to original U.S. Government Works.

1 § 9 Holding device to view image—Held violation

1 § 10 Holding device to view image—Held no violation

IV Liability for Using Hands-Free Device While Driving

1 § 14 Dialing hands-free device

1 § 15 Pressing multiple buttons on hands-free device

1 § 17 Engaging in conversation while holding hands-free device

V Location and Motion of Vehicle as Affecting Liability

1 § 19 Using device when vehicle not in motion—Held violation

1 § 20 Using device in parking lot

1 VI Presumptions Under Statutes as to Using Portable Electronic Device While Driving

1 § 21 Presumption as to using portable electronic device—Held presumption created

1 § 22 Presumption as to using portable electronic device—Held presumption not rebutted

0 § 23 Held verdict finding violation not against weight of evidence

0 § 24 Held evidence sufficient beyond reasonable doubt to prove violation

0 § 25 Held substantial evidence supported finding violation

0 § 26 Held evidence insufficient to prove violation

VIII Statutory Exemptions

§ 2. Background and summary

1 • For Vagueness or Overbreadth

§ 4. Vagueness and overbreadth

© 2021 Thomson Reuters. No claim to original U.S. Government Works.

III. Liability for Using Handheld Device While Driving

§ 7. Using amateur radio device

§ 8. Making failed attempted call

© 2021 Thomson Reuters. No claim to original U.S. Government Works.

§ 9. Holding device to view image—Held violation

§ 10. Holding device to view image—Held no violation

© 2021 Thomson Reuters. No claim to original U.S. Government Works.

IV. Liability for Using Hands-Free Device While Driving

§ 13. Holding hands-free device to activate, deactivate, or initiate function

© 2021 Thomson Reuters. No claim to original U.S. Government Works.

§ 14. Dialing hands-free device

§ 15. Pressing multiple buttons on hands-free device

© 2021 Thomson Reuters. No claim to original U.S. Government Works.

§ 17. Engaging in conversation while holding hands-free device

© 2021 Thomson Reuters. No claim to original U.S. Government Works.

V. Location and Motion of Vehicle as Affecting Liability

§ 18. Using device when vehicle not in motion—Held no violation

§ 19. Using device when vehicle not in motion—Held violation

§ 20. Using device in parking lot

© 2021 Thomson Reuters. No claim to original U.S. Government Works.

§ 21. Presumption as to using portable electronic device—Held presumption created

© 2021 Thomson Reuters. No claim to original U.S. Government Works.

§ 22. Presumption as to using portable electronic device—Held presumption not rebutted

© 2021 Thomson Reuters. No claim to original U.S. Government Works.

© 2021 Thomson Reuters. No claim to original U.S. Government Works.

§ 23. Held verdict finding violation not against weight of evidence

§ 24. Held evidence sufficient beyond reasonable doubt to prove violation

§ 25. Held substantial evidence supported finding violation

© 2021 Thomson Reuters. No claim to original U.S. Government Works.

© 2021 Thomson Reuters. No claim to original U.S. Government Works.

§ 26. Held evidence insufficient to prove violation

© 2021 Thomson Reuters. No claim to original U.S. Government Works.

in N.Y. Veh. & Traf. Law § 1225-c(1)(f).