CELL PHONE
There are two varieties of cell phone ticket: Improper Cell Phone Use and Operating a Portable Electronic Device. Both count for five points on your license, but they are very different charges.
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Improper Cell Phone Use
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If you speak on the telephone while operating a motor vehicle, you violate VTL 1225(c)(2)(a) for improper cell phone use. You might call this the original cell phone law, as it prohibits only the activity that cell phones were originally designed to do. Usually, this means that the police officer observed the driver holding the cell phone by his ear or by his mouth. This observation creates a presumption that the motorist is speaking on the cell phone.
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For this violation to apply, the vehicle must also be in motion. Many motorists will claim that their vehicle was not moving when the officer observed them on their cell phones. But this claim is impossible to prove in court, and is unlikely to persuade most traffic court judges. Also, if this violation is alleged for a driver who is actually texting or using GPS, a favorable judge might dismiss it on the basis that the officer should have issued a summons for the below violation, as opposed to improper cell phone use.
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Operating A Portable Electronic Device
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VTL 1225(d) prohibits more modern uses of cell phones, such as texting, looking at pictures, using social media, and browsing the Internet. For most judges, the officer must only indicate that the motorist had the phone in her hand while the vehicle was in motion. Some judges may also want testimony that the motorist was manipulating the device or holding it in a conspicuous manner.
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The Cell Phone Bill As Proof
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Some drivers believe they can win this ticket by showing the judge their cell phone bills to prove that at the time of the violation, the driver was not using the cell phone. While an attorney might not discourage you from procuring a cell phone bill, this proof rarely helps, because of the sheer number of activities that are not reflected on the bill. If you look at your phone for a moment and tap the screen, that is likely enough to satisfy the elements of VTL 1225(d) -- but it will not show up on a phone bill. Likewise, a bill will not prove that you were not watching a video, looking at pictures, or otherwise unlawfully using the phone in a myriad of ways.
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With that said, if you wish to bring a cell phone bill to court, make sure you print the entire bill, not just a one-page excerpt. And bring proof that there are no other phones on the bill in question. In general, judges are cynical about cell phone bills. Expect the judge to ask you if you have any other cell phones. And expect a lecture about the above -- that no recordable data transmission is required for your actions to be unlawful.
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An attorney knows which judges may consider your cell phone bill, and how to best use this proof in a way that helps you. On your own with a cell phone bill in hand, you should expect disappointment.
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Unfortunately, The Motorist's Testimony Rarely Helps In A Cell Phone Ticket
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Your cell phone bill rarely helps. Your testimony that you were not in motion rarely helps. And judges construe the "emergency" justification very narrowly; most will say that an emergency only applies if someone's life or health is in immediate danger. In short, if it's your word against the police officer, you are not likely to win.
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A Traffic Attorney Can Win Your Cell Phone Ticket
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While your evidence may not convince the judge to dismiss your ticket, a traffic attorney will use tried and true methods to win. The police officer must establish the legal elements of the case. An experienced attorney knows which judges are most inclined to dismiss the summons on the grounds of a minor police error. Consider consulting with a traffic attorney to fight your cell phone infraction.