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Driving While Using A Cell Phone

Earlier this year a section of New York’s Vehicle and Traffic Law (“VTL”) was amended to permit a police officer to stop a motorist for operating a vehicle while using any portable electronic devices. The VTL defines portable electronic devices as a personal digital assistant (PDA), cell phone, two-way messaging device, electronic game or portable computing device. VTL § 1225(d)(2)(a).

All drivers should know that “using” a portable electronic device while operating a vehicle includes more than just sending or receiving text messages. Using, for the purposes of violating this section of law, includes simply holding the device and browsing the internet.

A motorist who is using a device for the purpose of reporting an emergency situation to 9-1-1, a hospital, a police department or fire department are not guilty of violating this new section. Also, the new section does not apply to police officers or fire department personnel while on duty. VTL § 1225(d)(3)(a),(b).

Any motorist who holds such a device while operating a motor vehicle is “presumed” to be using it in violation of this newly amended section of law. This means that if a motorist receives a ticket for operating a vehicle while using a personal electronic device then he or she bears the burden of proving they did not violate the law. VTL § 1225(d)(4).

This “presumption” can be overcome by the motorist through the submission of evidence which demonstrates the device was not in use at the time alleged in the ticket. For example, a cell phone bill from the motorist’s wireless provider which shows the lack of charges of air time or cell minute usage during the time alleged on the ticket could prove the device was not in use.

The importance of defending a ticket issued for operating a motor vehicle while using a portable electronic device cannot be minimized. A person convicted of the violation faces a fine of up to $150 and 3 administrative points assed by DMV.

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James L. Riotto
Criminal Defense Lawyer

James L. Riotto is an accomplished criminal defense attorney serving clients in New York. With an extensive background in law enforcement and criminal prosecution, his approach to each case is unique and informed by years of experience with the New York criminal justice system. As a graduate from Albany Law School and before going on to start his own practice, James worked at the Albany County District Attorney's Office, where he helped prosecute many DWI offenses. His inside knowledge of the tactics used to gain convictions provides him with a particular advantage when defending against DUI and other criminal charges.

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Adam D. Staier
Of Counsel

About Attorney Adam Staier has spent the last seven years practicing criminal defense law throughout upstate New York and the Capital Region. He began his legal career through internships in civil law, indigent legal representation and federal energy law regulation. Finding a passion in criminal law, Mr. Staier held internships handling both prosecution and defense…

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William M. Swift
Associate Attorney

About William M. Swift is an associate attorney at the Law Office of James L. Riotto and brings 20 years of experience to our clients. His practice focuses on personal injury cases and criminal matters. He has successfully represented individuals in felony, misdemeanor cases. Additionally, he has extensive knowledge in DMV administrative proceedings involving suspensions…

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