# What Is Your Thoughts/traffic ticket ??



## Helena (May 10, 2002)

A few weeks back I was stopped in NY state for using my cell phone while driving. we live in Pa but near the NY border.I was not talking on the cell as I don't think you should talk and drive but did pick up the phone to look at the time on the screen...Didn't get into it at the time with the state trooper..figured that wasn't the place. When I called the barracks they said that you can not even have a cell phone in your hands while driving. For the life of me I don't know how people can live in the NY with all their laws etc. But, anyways. I can go to court in a couple of weeks and tell my story and that for 51 years a PA driver and no none ever..tickets...And did the trooper really need to tell me that he was working overtime and I was the 11th person to stop that day. A gold star for him ??.. So..would you just say..pay the $88 ticket plus court cost. Probably well over 100$'s or tell the judge that a warning to a 67 year old great granny with no driving record could of just had a warning at the time. What do you all think ??


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## kasilofhome (Feb 10, 2005)

Can you prove no call or text was actually being dealt with....
You phone service might lead you to that info.

I don't use the phone when driving but do have it Velcro to the dash as a clock.


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## Shine (Feb 19, 2011)

First off, look at the ticket. Find out what "law" you broke, google it and read it in it's entirety. If it does not sound understandable, most medium to large cities offer free legal assistance. Speak with them to have them explain. And as above, get a call/text log from your phone company. Example as above, can you get a ticket for looking at your watch while driving? If not then you most probably cannot get a ticket for using your phone as a clock.


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## wr (Aug 10, 2003)

'd probably want clarification on the law because I suspect it varies quite a bit. 

Instead of a no cell phone law, some places have a distracted driving law that includes phone calls without a Bluetooth, texting, using GPS on your phone, changing the music on your phone etc so the assumption may be that if it's in your hand, your eyes aren't on the road but you won't know until you research.


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## Bearfootfarm (Jul 13, 2006)

> A few weeks back I was stopped in NY state *for using* my cell phone while driving. we live in Pa but near the NY border.
> 
> I was not talking on the cell as I don't think you should talk and drive but *did pick up the phone* to look at the time on the screen...
> 
> ...





> What do you all think ??


You've already admitted you are guilty.

I'd pay the ticket, and next time look at the clock on your radio, or pull off the road to check.


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## JJ Grandits (Nov 10, 2002)

New York is a truly beautiful State full of wonderful people. We are however burdened with a very liberal government that tries to control every aspect of your life. Because of this we are the least free of all the States and must live under a massive pile of laws effecting everything we do. The best way to deal with it?

Ignore them.

After awhile you'll get really good at it and have little fear of getting caught. 

It is an example we learned for or politicians in Albany. They pass laws that they know we ignore and in return we keep re-electing a group of liars and thieves.

Instead of paying a $100 fine simply send $50 to a politician and get a "get out of jail free" card.

Once you get a handle on this it's a great place to live. The people are friendly, the food is great, and the fishing is excellent.


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## ninny (Dec 12, 2005)

I Would guess that probably 90% of traffic laws are for collecting revenue. Can you see the irony of a motorcycle cop pulling someone in a vehicle over and giving that person a ticket for "no seatbelt?" How much sense does that make?

.


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## Tricky Grama (Oct 7, 2006)

Not to mention the Adirondacks. We go every yr. 
Few liberals there.


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## AmericanStand (Jul 29, 2014)

It seems like I heard of a judge ruling it was okay to use your phone for a map. 
It would seem that using it for a clock would certainly fall within that level of thought. 
However that ruling might have been in California and not apply to you.


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## AmericanStand (Jul 29, 2014)

Two days ago a state trooper went by me. He was turned sideways in his seat typing on his computer and was obviously talking to somebody. He also had a book open and was writing. In almost a mile on the interstate I never saw either one of his hands touch the steering wheel as the car drifted from rumble strip to rumble strip


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## ninny (Dec 12, 2005)

AmericanStand said:


> Two days ago a state trooper went by me. He was turned sideways in his seat typing on his computer and was obviously talking to somebody. He also had a book open and was writing. In almost a mile on the interstate I never saw either one of his hands touch the steering wheel as the car drifted from rumble strip to rumble strip


A while back there was an article posted on CopBlock about a cop that was on his computer when he hit and killed a bicyclist.He was found to have done nothing wrong because it was "just an accident." The bicyclist was in a bicycle lane. Do you think that any one of us could have used that excuse and gotten away with it? Of course the Investigation was done by his own department...how convenient.


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## where I want to (Oct 28, 2008)

ninny said:


> A while back there was an article posted on CopBlock about a cop that was on his computer when he hit and killed a bicyclist.He was found to have done nothing wrong because it was "just an accident." The bicyclist was in a bicycle lane. Do you think that any one of us could have used that excuse and gotten away with it? Of course the Investigation was done by his own department...how convenient.


And you got a information from a biased source. It may be a total whitewash of police misconduct but if it was an important issue, a website called CopBlock would not be the source of definitive truth. 
In these days the ending examination of an incident is always a court case.
This is not a defense of the police but simply a statement that there is not enough facts to condemn or absolve.


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## where I want to (Oct 28, 2008)

Helena said:


> A few weeks back I was stopped in NY state for using my cell phone while driving. we live in Pa but near the NY border.I was not talking on the cell as I don't think you should talk and drive but did pick up the phone to look at the time on the screen...Didn't get into it at the time with the state trooper..figured that wasn't the place. When I called the barracks they said that you can not even have a cell phone in your hands while driving. For the life of me I don't know how people can live in the NY with all their laws etc. But, anyways. I can go to court in a couple of weeks and tell my story and that for 51 years a PA driver and no none ever..tickets...And did the trooper really need to tell me that he was working overtime and I was the 11th person to stop that day. A gold star for him ??.. So..would you just say..pay the $88 ticket plus court cost. Probably well over 100$'s or tell the judge that a warning to a 67 year old great granny with no driving record could of just had a warning at the time. What do you all think ??


I think the chances are good you will run into a judge what has heard every story in the book and it would be total chance whether he is in the mood to let you off out of sympathy or not. I'd bet on the not as most likely. But unless you have some sort of actual defense that indicates the policeman was wrong and you did not violate the law, or that there is a precedent for excusing ignorance of the law from a visitor from another state, all you'll be doing is asking for mercy based, not asking him to give you the benefit of the doubt.


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## ninny (Dec 12, 2005)

where I want to said:


> And you got a information from a biased source. It may be a total whitewash of police misconduct but if it was an important issue, a website called CopBlock would not be the source of definitive truth.
> In these days the ending examination of an incident is always a court case.
> This is not a defense of the police but simply a statement that there is not enough facts to condemn or absolve.


Okay, how about the same article from a source that's not so "biased." 

"An L.A. County Sheriff&#8217;s Deputy struck and killed a cyclist while the cop was busy answering an email and driving at the same time. The cyclist&#8217;s family pressed charges against the cop and the police department, but the District Attorney decided that the cop didn&#8217;t do anything wrong. The _Los Angeles Daily News _reported:"
_The Los Angeles __County District Attorney&#8217;s Office declined to press charges against a sheriff&#8217;s deputy who was apparently distracted by his mobile digital computer when he fatally struck cyclist Milton Olin Jr. in Calabasas in December, officials announced Wednesday._
_Olin, a prominent entertainment attorney, was riding his bicycle in the 22400 block of Mulholland Highway when he was struck by L.A. County Sheriff&#8217;s Deputy Andrew Wood&#8217;s patrol car in the bicycle lane on the afternoon of Dec. 8. The former A&M Records and Napster executive reportedly landed on the windshield and shattered the glass before rolling off the patrol car. He was pronounced dead at the scene._
_Wood, a 16-year department veteran, was returning from a fire call at Calabasas High School at the time of the collision._
_&#8220;Wood entered the bicycle lane as a result of inattention caused by typing into his (Mobile Digital Computer),&#8221; according to the declination letter prepared by the Justice System Integrity Division of the District Attorney&#8217;s Office and released Wednesday. *&#8220;He was responding to a deputy who was inquiring whether the fire investigation had been completed. Since Wood was acting within the course and scope of his duties when he began to type his response, under Vehicle Code section 23123.5, he acted lawfully.&#8221;*_

Read more at http://lastresistance.com/7098/cop-...list-charges-cop-dropped/#gSEkGMIAj0VoFjPQ.99


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## BlackFeather (Jun 17, 2014)

It is all about revenue collection, go talk to the district attorney, he will probably lower if not throw out the ticket. If you can prove no calls or texts are made, and the D.A. won't throw it out plead innocent and go before the judge. The worst that will happen is you'll pay the fine. It is funny, cops are allowed to use the cell phone when driving but we citizens are not. You could always ignore the court date and never go back to New York for the rest of your life.  No too long ago I was at a stop light, the light turned green and I started to go when a cop ran the red light and cut in front of me, no sirens, I thought maybe he has to approach with sirens silenced so as not to give away his arrival, then he turned down our street, ok I thought the low cost housing development always has problems, then he turned into Timmy Ho's, ok it's a doughnut shop maybe he needs an equipment check (police term for a bathroom stop) and is in a hurry, nope through the drive through line he went. So this guy ran a red light because he got an emergency call from a cup of coffee and a doughnut. After all aren't all police above the law?


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## where I want to (Oct 28, 2008)

http://www.dailybreeze.com/governme...-in-fatal-collision-with-cyclist-in-calabasas

The DA who declined to charge the deputy with a crime stated it was because there was no law barring police from using job related electronic media. If he had been using it for personal reasons, then criminal charges would apply like for everyone else. 
It is clear that is a policy the police need to change, even if they subsequently did "discipline" the policeman for his action and a civil court case is ongoing. If it is too dangerous for civilians, it's too dangerous for police.
But that's is still not the same thing as the police ignoring the issue or dismissing it without action.


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## ninny (Dec 12, 2005)

BlackFeather said:


> It is all about revenue collection, go talk to the district attorney, he will probably lower if not throw out the ticket. If you can prove no calls or texts are made, and the D.A. won't throw it out plead innocent and go before the judge. The worst that will happen is you'll pay the fine. It is funny, cops are allowed to use the cell phone when driving but we citizens are not. You could always ignore the court date and never go back to New York for the rest of your life.  No too long ago I was at a stop light, the light turned green and I started to go when a cop ran the red light and cut in front of me, no sirens, I thought maybe he has to approach with sirens silenced so as not to give away his arrival, then he turned down our street, ok I thought the low cost housing development always has problems, then he turned into Timmy Ho's, ok it's a doughnut shop maybe he needs an equipment check (police term for a bathroom stop) and is in a hurry, nope through the drive through line he went. So this guy ran a red light because he got an emergency call from a cup of coffee and a doughnut. After all aren't all police above the law?


Some of of the above incident are the reason I now have two cameras in my truck, one to the front and one to the back. They're relatively inexpensive and are good insurance should a question ever come up in an accident or question about a traffic citation. I Would strongly recommend everyone have one.
They record audio, video, speed, time and have motion sensors to record sudden movement such as an impact. They are also equipped with night vision.


.


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## AmericanStand (Jul 29, 2014)

Ninny where did you get them and what brand and model are they ?


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## AmericanStand (Jul 29, 2014)

There is no way that killing a bicyclist is within the cops scope of duties.
I will bet you a dollar against any cops box of donuts that in his training on how to use the device the words , safe to do so ,when safe ,while maintaining control ,and others like that were used .
Thus cop was outside the scope of his duties and his training and should be prosecuted like any other murderer.


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## ninny (Dec 12, 2005)

AmericanStand said:


> Ninny where did you get them and what brand and model are they ?


I actually bought mine from two different places. One is from a computer website that I subscribe to that has me on their email list and the second I bought from one of the T.V. home shopping networks. Don't recall the brand names but if you do a Google search for dash cameras you can find a bunch of them. I've seen them as cheap as $40. Mine were a little more than that as I bought ones with some added features. If you're thinking about getting one be sure and check the reviews on it :thumb:

.


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## farmrbrown (Jun 25, 2012)

To the OP:
Whatever you do, ignore THIS advice...........



Bearfootfarm said:


> You've already admitted you are guilty.
> 
> I'd pay the ticket, and next time look at the clock on your radio, or pull off the road to check.


As previously stated, read the exact statute yourself, the last person's word I would take on a matter of law would be the cop's. He isn't there to enforce the law and he isn't trying to "protect and serve", he is acting as a revenue ranger.
Don't feed the Beast.


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## ninny (Dec 12, 2005)

farmrbrown said:


> To the OP:
> Whatever you do, ignore THIS advice...........
> 
> 
> ...


AMEN...

There's an excellent video on youtube by a law professor and a retired police detective and BOTH OF THEM stress over and over to not talk to police except what you're required to give them. This video should be required watching for EVERYONE. When a policeman tells you not to talk to the police I would strongly advise everyone to take that advice. The Video is about 28 min. long but it'll be some of the best 28 min that you will spend and the most informative.

Here's a link to the video. [ame]https://www.youtube.com/watch?v=i8z7NC5sgik[/ame]

.

.


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## Bearfootfarm (Jul 13, 2006)

farmrbrown said:


> To the OP:
> Whatever you do, ignore THIS advice...........
> 
> 
> ...


The laws are pretty clear, no matter who tells you what they are:
http://www.drivinglaws.org/nylaw.php


> Cell Phone Use
> A driver in New York who uses a cell phone while driving (except to call 911 or to report medical, police or fire emergencies) can receive a traffic ticket and a maximum fine of $100 and mandatory surcharges and fees of up to $85. The violation also adds three points to the driver's license. In other words,


http://www.safeny.ny.gov/phon-ndx.htm


> New York prohibits all drivers from using portable electronic devices.
> 
> *Illegal activity includes holding a portable electronic device* and:
> 
> ...


The OP said she was "using" the phone, and the cop saw her "using" the phone. 

Odds are good trying to fight it will result in additional court costs, in addition to having to waste a day or more in court



> April is Distracted Driving Awareness Month. Police officers in New York State will be looking for cell phone law violators.
> 
> Enforcement mobilization dates are April 10 - 15th.
> 
> Don't make a dumb choice with your smart phone.


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## AmericanStand (Jul 29, 2014)

So those GPS direction givers are illegal if they are handheld? Sounds like a watch would be too.


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## AmericanStand (Jul 29, 2014)

Just wondering How did he see you? Its pretty hard to see into my truck or car unless they are standing there.


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## Doggonedog (Dec 4, 2014)

As I see it you did the crime and now have to pay the fine. It's the chance you take in states where using a cellphone while driving is a crime.


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## AmericanStand (Jul 29, 2014)

The law is pretty clear its not a cell phone law its any hand held electronics.
Is there any indication of that when you inter New York?


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## Bearfootfarm (Jul 13, 2006)

AmericanStand said:


> So those GPS direction givers are illegal if they are handheld? Sounds like a watch would be too.


Yes, a watch would probably fit in some of those descriptions, although you can look at a watch with your hands on the steering wheel, and technically it's not "handheld"


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## kasilofhome (Feb 10, 2005)

Pocket watches..... like what I wear that was in the family but doesn't work but it does have my grandfather and mothers pix


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## kuriakos (Oct 7, 2005)

> "Using" shall mean holding a portable electronic device while viewing, taking or transmitting images, playing games, or composing, sending, reading, viewing, accessing, browsing, transmitting, saving or retrieving e-mail, text messages, or other electronic data.


This definition only applies to the situation if the time is considered "electronic data." Maybe the court would stretch it to include that but it's ambiguous enough that it would be worth fighting.


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## Bearfootfarm (Jul 13, 2006)

kuriakos said:


> This definition only applies to the situation if the time is considered "electronic data." Maybe the court would stretch it to include that but it's ambiguous enough that it would be worth fighting.


The numbers on the dial are "images" that the user is "viewing"
There's no ambiguity


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## kuriakos (Oct 7, 2005)

I don't believe we have enough information to know whether that's true. Perhaps it was a digital clock on an old non-image capable phone. But that's irrelevant anyway. The clear intent of the law appears to not apply to checking the time. The lawmakers could have defined using as looking at a phone in your hand for any reason, but they chose to be more specific by listing particulars, while also leaving ambiguity. That's something lawmakers are very good at, and attorneys like me have to deal with their poorly worded laws being misapplied all the time.


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## JeffreyD (Dec 27, 2006)

Always fight every ticket. There's a good chance the cop won't show up, it then gets thrown out. If he does show up, the worst that will happen is you'll pay the same exact fine as if you didn't fight it. At least you'll have the knowledge that you took a part of the fund raising mechanism out for a while.


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## Woolieface (Feb 17, 2015)

Gosh, there are some perfect, hands on wheel at 10 & 2 drivers here. Can't imagine going through life having never taken a hand off of the wheel or glancing at anything else. Us lawbreakers just need to do the time. That's Do the time, not Look at the time (because that's illegal.) How else are the police going to get their fancy new vehicles buffed and shined if we fight that Almighty System?


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## farmrbrown (Jun 25, 2012)

kuriakos said:


> This definition only applies to the situation if the time is considered "electronic data." Maybe the court would stretch it to include that but it's ambiguous enough that it would be worth fighting.



Yep.




Bearfootfarm said:


> The numbers on the dial are "images" that the user is "viewing"
> There's no ambiguity



Nope.



Bearfootfarm said:


> The laws are pretty clear, no matter who tells you what they are:
> http://www.drivinglaws.org/nylaw.php
> 
> 
> ...



And THIS is why I said to read the statute, NOT the little summaries given by state DMV's who may sometimes be right, sometimes even close, but usually guaranteed to NOT quote the statute in its entirety......

As a disclaimer, I don't know the exact statute # on the ticket and whether this is the precise one, but my advice remains the same, regardless.

http://codes.lp.findlaw.com/nycode/VAT/VII/33/1225-c

When you read it from beginning to end, you are told exactly what defines "use", "images" and lo and behold.......even what constitutes a perfectly legitimate defense. :clap:



c) "Using" shall mean holding a mobile telephone to, or in the immediate proximity of, the user's ear. (d) "Hand-held mobile telephone" shall mean a mobile telephone with which a user engages in a call using at least one hand. (e) "Hands-free mobile telephone" shall mean a mobile telephone that has an internal feature or function, or that is equipped with an attachment or addition, whether or not permanently part of such mobile telephone, 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. (f) "Engage in a call" shall mean talking into or listening on a hand-held mobile telephone, but shall not include holding a mobile telephone to activate, deactivate or initiate a function of such telephone. (g) "Immediate proximity" shall mean that distance as permits the operator of a mobile telephone to hear telecommunications transmitted over such mobile telephone, but shall not require physical contact with such operator's ear. 2. (a) Except as otherwise provided in this section, no person shall operate a motor vehicle upon a public highway while using a mobile telephone to engage in a call while such vehicle is in motion. (b) An operator of a motor vehicle who holds a mobile telephone to, or in the immediate proximity of his or her ear while such vehicle is in motion is presumed to be engaging in a call within the meaning of this section. The presumption established by this subdivision is rebuttable by evidence tending to show that the operator was not engaged in a call. - See more at: http://codes.lp.findlaw.com/nycode/VAT/VII/33/1225-c#sthash.iPsZV1ET.dpuf



BUT, in case there was still any doubt about whether you could be found not guilty.....in NY......for looking at your cell phone as a clock while driving.......and receiving a ticket for said offense........I present this case from 2013.

http://law.justia.com/cases/new-york/other-courts/2013/2013-ny-slip-op-23196.html


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## AmericanStand (Jul 29, 2014)

Wow sounds like the OP may not be the Criminal some here here have opined !


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## kuriakos (Oct 7, 2005)

Perfect case law, farmrbrown.

To the OP, if I were advising you (which I am not) this is what I would say: take the case referenced above (People v Riexinger) to court with you, along with any proof you can provide that you didn't send or receive any texts or phone calls during that time period. You will need to testify that you were checking the time and nothing else. If your records back that up and the officer cannot testify that he saw you doing something else, you should have the ticket dismissed.

It would be slightly better for your case if you had told the officer that you were just checking the time, but it cannot be used against you if you didn't say that. If they ask you in court why you didn't, just tell the truth that you didn't think that was the time or place to get into it.


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## ninny (Dec 12, 2005)

If there's a specific time for a court date, try to have it postponed. Generally court dates are set for when the officer will be off and can make it to the hearing. Having it postponed will likely put the hearing on a day the officer will be working and unable to be there. In that case the ticket will likely be dismissed. This is what an attorney that handles a lot of traffic tickets recommends.

.


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## Bearfootfarm (Jul 13, 2006)

> And THIS is why I said to* read the statute*, NOT the little summaries given by state DMV's who may sometimes be right, sometimes even close, but usually guaranteed to NOT quote the statute in its entirety......
> 
> As a disclaimer, I don't know the exact statute # on the ticket and whether this is the precise one, but my advice remains the same, regardless.


You stopped reading too soon, and only focused on "phone calls":

The next page after the one you cited says:



> 1. Except as otherwise provided in this section, no person shall operate a motor vehicle *while using any portable electronic device* while such vehicle is in motion.





> When you *read it from beginning to end*, you are told exactly what defines "use", "images" and lo and behold.......even what constitutes a perfectly legitimate defense.


You stopped reading before the end, otherwise you'd have seen (again) the rest of the rules I already posted
http://codes.lp.findlaw.com/nycode/VAT/VII/33/1225-d


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## kasilofhome (Feb 10, 2005)

So, I can smoke a cig but not vape with and e cig. More clarity is what I would want.

I am soooo glad I am not in New York.


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## Bellyman (Jul 6, 2013)

At least in front of a judge, you might have the opportunity to appeal to their sense of "intent" of the law vs. the "letter" of the law. The intent of the law appears to be not allowing you to browse through the 3000 pictures on your cell phone while weaving down the interstate. Taking a glance to see what time it is, I do not believe was the intent of the law. (On my phone, you have to push the button on the side of it to "wake" it before you can see what the time is. I suspect most phones are similar. By the same token, most people would need to take their hand off the wheel in order to have a good look at their watch.)

If you have the time, go for it. Be respectful but state your case as best you can. Take your detailed usage statement to prove you weren't talking or texting. See what happens. Might win. Might lose. Won't know if you don't try.


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## farmrbrown (Jun 25, 2012)

Bearfootfarm said:


> You stopped reading too soon, and only focused on "phone calls":
> 
> The next page after the one you cited says:
> 
> ...


:facepalm:

Thanks for the link, but I already read both NY statutes (1225c & d) in their entirety, that's how I knew that "use" didn't include looking at the clock function, as well as turning it off or on, and other miscellaneous functions.

If you'll look at the link I posted from the NY case involving this exact situation, you'll find a detailed explanation from the judge on both statutes, and why he found the defendant "not guilty".

VERDICT 

The Court credits both witnesses as their testimony verifies each other. Trooper Waild saw the Defendant with her cell phone in her hand thus, "using" it as a portable electronic device. The Defendant admits using her cell phone as a clock. It is clear to the Court the Defendant was not talking on her cell phone or Trooper Waild would have charged Defendant under VTL 1225-c. There was no testimony that the cell phone was anywhere near the Defendant's ear. Defendant's Exhibit "B", unchallenged by the People, shows no texting was going on at the time of observation by Trooper Waild or at the arrest of the Defendant. The Court is left with interpretation of VTL Â§1225-d (2)(a) that a "portable electronic device" is any hand-held mobile telephone and "using" that device while viewing images is prohibited. VTL Â§1225-d was amended and made a primary offense effective July 12, 2011. In signing the bill, Governor Cuomo noted that the new law applies not only to texting, but also to using a portable electronic device while driving, for any other purpose, such as surfing the web or checking emails. 

There are numerous news reports in the media regarding serious accidents, injuries and fatalities that have occurred over the last few years resulting from drivers being distracted while using hand held devices. The Court takes judicial notice of the serious nature of the problems that have developed as a result of drivers texting or usinghand devices while driving and the importance of the potential protection of the public that this section of the VTL was attempting to address, and the reasons for which it was enacted. [*3]


The Court notes that Section 1225-c was enacted prior the enactment of Section 1225-d. The Court is also aware that Section 1225-c (f) states, with regard to use of a cell phone that "(f) "Engage in a call" shall mean talking into or listening on a hand-held mobile telephone, but shall not including holding a mobile telephone to activate, deactivate or initiate a function of such telephone". However, there is no such similar section with regard to activation, deactivation or initiating a function of the telephone in Section 1225-d. As such, Section1225-c permits activation, deactivation or initiating a function of the telephone, but Section 1225-d is silent on this point. Criminal Statues must be strictly construed. The prohibited action under VTL Â§1225-d does not encompass using a cell phone as a clock or watch. The Court finds the Defendant's actions akin to taking a pocket watch out to view the time. Surely, the New York State Legislature did not intend to prohibit this kind of action when enacting VTL Â§1225-d. Accordingly, the Court finds the Defendant "NOT GUILTY" of violating VTL Â§1225-d. 

Dated: June 6, 2013___________________________Hon. Leonard G. Tilney, Jr.,Lockport Town Justice







Hopefully you would agree with a judge in a dismissed case, rather than relying on lesser opinions from a cop or DMV pamphlet.
In conclusion, I think we'd both agree that reading thoroughly and diligent research can be of great value.


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## Bearfootfarm (Jul 13, 2006)

> farmrbrown;7447196]:facepalm:
> 
> Thanks for the link, but I already read both NY statutes (1225c & d) in their entirety, that's how I knew that "use" didn't include looking at the clock function, as well as turning it off or on, and other miscellaneous functions.
> 
> If you'll look at the link I posted from the NY case involving this exact situation, you'll find a detailed explanation from the judge on both statutes, and why he found the defendant "not guilty".



A single dismissed case doesn't change the wording of the law.

It's merely one judge's opinion in one specific case , and the next judge may see it differently.

The statute still says any use is illegal


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## JeffreyD (Dec 27, 2006)

Bearfootfarm said:


> A single dismissed case doesn't change the wording of the law.
> 
> It's merely one judge's opinion in one specific case , and the next judge may see it differently.
> 
> The statute still says any use is illegal


Precedent!


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## farmrbrown (Jun 25, 2012)

Bearfootfarm said:


> A single dismissed case doesn't change the wording of the law.
> 
> It's merely one judge's opinion in one specific case , and the next judge may see it differently.
> 
> *The statute still says any use is illegal*


Come on, now you're just being silly. You know darn good and well the statute gives several instances where its use is legal.
The judge correctly read where turning it off and on, merely looking at it, was specifically allowed and if it wasn't in close proximity to the driver's ear, it was evidence that it wasn't being illegally used. I can pull up those sections again if you'd like.
Then of course there is the exception for 911 calls and use by emergency personnel.
Additionally, while a court ruling from another district far away might be ruled differently, I suspect that this judge is close to where the OP got her ticket.
That's a good example of what I was talking about, when someone takes a snippet of a law out of context and proclaims it to be "the law".

But really, it's ok to be wrong about something once in a while, no big deal. I'm sure by tomorrow, you'll be fine.:happy2:


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## kuriakos (Oct 7, 2005)

The case referenced earlier is what's known as a persuasive precedent. It does not require the court in this case to rule the same way, but the court will consider it and most likely will rule the same way. It is without a doubt worth fighting the ticket, considering the penalty and the fact that the OP does not appear to be guilty of violating the statute in either letter or spirit. If what we know about the incident is all true, the cop was wrong.


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## farmrbrown (Jun 25, 2012)

That's a good point.
In order to successfully challenge the ticket, she has to prove with phone records that she wasn't in fact, engaged in a phone call or any other transmitting of data.
The way the law is worded is subtle, but the prohibition on "viewing images" is linked to electronic data transmission, not to viewing any and all images by the driver behind the wheel because that would be ridiculous.


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## kuriakos (Oct 7, 2005)

Technically, she doesn't have to prove her innocence, but practically speaking she does since it's the officer's word against hers. If he is honest in court, he may admit that he didn't witness anything other than her holding the phone and that should be enough to get it dismissed. If the officer stretches the truth a bit about what he saw, then it will be more difficult for her.


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## Bellyman (Jul 6, 2013)

If the officer does lie and say she was talking on her phone, it would be interesting to see the reaction of the judge when seeing the phone company's detailed statement with an absence of phone activity at the specific time of her being pulled over. Might be interesting.


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## kuriakos (Oct 7, 2005)

Police who lie under oath (I've known a few in my days as a prosecutor, magistrate, and criminal defense attorney) know how to get away with their lies most of the time. If he were to lie, he might say something like "I observed the driver reading what appeared to be a text message or an email on the screen of her phone." It would be very hard to prove she wasn't doing that, as the phone records don't show when a person is reading a message, only when it's sent/received. However, it appears that the officer in question doesn't know the law well enough to know he needs to lie to prove his case, so that could work in her favor. If he does say he observed her reading something on the phone screen, it would be a good opportunity to question him as to his distance from her when he saw that and whether she was moving away from him or toward him and at what approximate speed. These are the details that can introduce doubt as to what the officer was able to witness. They usually have a robotic speech where they rattle off a lot of details to impress the judge with their thoroughness, but then if asked any questions they are not as convincing.


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## Bearfootfarm (Jul 13, 2006)

> Come on, now you're just being silly. You know darn good and well the statute gives several instances where its use is legal.


No, actually it doesn't, and your link says so:



> The Court is also aware that Section 1225-c (f) states, with regard to use of a cell phone that "(f) "Engage in a call" shall mean talking into or listening on a hand-held mobile telephone, but shall not including holding a mobile telephone to activate, deactivate or initiate a function of such telephone".
> 
> *However, there is no such similar section with regard to activation, deactivation or initiating a function of the telephone in Section 1225-d*.


You like to keep focusing on the "phone" portion of the ordinance and ignoring the "electronic device" portion




> That's a good example of what I was talking about, when someone *takes a snippet of a law out of context* and proclaims it to be "the law".


Yes, that's a good description of repeatedly referring to Section 1225-C


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## Bearfootfarm (Jul 13, 2006)

JeffreyD said:


> Precedent!


There's nothing binding about that decision


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## Bearfootfarm (Jul 13, 2006)

> However, it appears that the officer in question doesn't know the law well enough to know he needs to lie to prove his case, so that could work in her favor.


He doesn't have to lie to say he saw her "using the electronic device"

She admitted that part already


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## kuriakos (Oct 7, 2005)

But he does have to lie to say she was viewing something other than the time, assuming what she has told us is true. She is "presumed" to have been "using" it because it was in her hand UNLESS she can provide evidence that she wasn't. Her own testimony is evidence, and if the officer's testimony doesn't contradict it, then she's not guilty. As the court found in that other case, the statute does not outlaw using a phone as a clock.

I'm not here to argue. I'm merely offering little help to someone who asked a question. As someone who has sat in every seat in the courtroom, including on the bench, my opinion is that it's worth fighting and if all the information she gave us is true, she has a good shot at winning.


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## AmericanStand (Jul 29, 2014)

Cars now have amazing amounts of computing power. Grasping the steering wheel would seem to make one guilty of having held and operated a electronic device.


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## Bearfootfarm (Jul 13, 2006)

> But he does have to lie to say she was viewing something other than the time, assuming what she has told us is true.


No, he doesn't have to lie, because the ordinance says it's illegal to *use *the device while driving.

It says nothing about any exemptions for "time", and you already said there is no "precedence" that says the judge has to agree with the other case



> I'm not here to argue. I'm merely offering little help to someone who asked a question. As someone who has sat in every seat in the courtroom, including on the bench, my opinion is that it's worth fighting and if all the information she gave us is true, she has a good shot at winning.


Anyone who's spent much time in court knows it's 50/50 at best, and that's when you have a lawyer.

This one will come down to how the judge feels that day, and the fact they were doing a big "driving while distracted" intervention that month. 

They want the convictions to justify the effort


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## Bearfootfarm (Jul 13, 2006)

AmericanStand said:


> Cars now have amazing amounts of computing power. Grasping the steering wheel would seem to make one guilty of having held and operated a electronic device.


"Car" isn't listed among the various definitions of "hand-held devices" even though they aren't limited strictly to "phones".


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## kasilofhome (Feb 10, 2005)

Helen...has this helped you...
And I hope you come back and inform us how it went for you.


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## kuriakos (Oct 7, 2005)

> No, he doesn't have to lie, because the ordinance says it's illegal to use the device while driving.


But the definition of "using" very specifically leaves out viewing the time. If the officer tells the truth, he has to admit either that he doesn't know what the driver was viewing or that he saw her viewing the time. Either is enough to get a not guilty.



> It says nothing about any exemptions for "time", and you already said there is no "precedence" that says the judge has to agree with the other case


It doesn't need to say anything about an exemption, since it specifically listed the things the law covers, and time was not one of them. There is precedent that the judge should consider, and most likely would agree with the other case. That's the whole point of precedent, to avoid the law being applied by the whims of the many different people applying it. Judges are usually hesitant to go against precedent, especially well-reasoned ones like referenced above.



> Anyone who's spent much time in court knows it's 50/50 at best, and that's when you have a lawyer.


I've spent most of the last 18 years in court. I say it's 80/20 in favor of the OP. A lawyer might push it to 90 in this case, but probably not worth the expense.



> This one will come down to how the judge feels that day


Again, avoiding that is the purpose of introducing a persuasive precedent, so that the law is applied fairly instead of based on the feelings of the judge any particular day. Most judges lean a little toward the interests of the state, but are still mostly fair and very hesitant to go against a precedent.


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## farmrbrown (Jun 25, 2012)

Bearfootfarm said:


> No, actually it doesn't, and your link says so:
> 
> 
> 
> ...



Yes, I know I keep referring to Section C, and there's a good reason for it as the judge in the linked case pointed out so clearly......


VVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVV



farmrbrown said:


> :facepalm:
> 
> Thanks for the link, but I already read both NY statutes (1225c & d) in their entirety, that's how I knew that "use" didn't include looking at the clock function, as well as turning it off or on, and other miscellaneous functions.
> 
> ...






Bearfootfarm said:


> It says nothing about any exemptions for "time", and you already said there is no "precedence" that says the judge has to agree with the other case


Again, please note the bolded, enlarged part above.
Since section "d" is a later amendment to 1225, and section"c" already allowed the "use" of said device in "activation, deactivation or initiating a function" of the phone and section"d" did not negate this allowance, the judge correctly interpreted this law as it was written......thanks to citizen exercising her rights.





kasilofhome said:


> Helen...has this helped you...
> And I hope you come back and inform us how it went for you.



Yes, inquiring minds want to know.
I wish her luck.:happy:


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## AmericanStand (Jul 29, 2014)

Good luck Helen


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## Bearfootfarm (Jul 13, 2006)

> But the definition of "using" very specifically leaves out viewing the time.


Not if she was charged under Section D
The judge in the previous case noted that fact

Repeating the same things won't change them


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## Bearfootfarm (Jul 13, 2006)

> Yes, I know I keep referring to Section C, and there's a good reason for it as the judge in the linked case pointed out so clearly......


That case doesn't change the ordinance
You're just repeating yourself


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## kuriakos (Oct 7, 2005)

I believe that is incorrect. None of the sections outlaws checking the time on a phone. They only outlaw other activities that qualify as using the phone. But you are correct that repeating the same things won't change anything, so I've said enough. There's no point in arguing with people who just want to argue for argument's sake. The OP has enough information to make her decision. I hope she reports back how it turns out.


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## Bearfootfarm (Jul 13, 2006)

> I believe that is incorrect. None of the sections outlaws checking the time on a phone. They only outlaw other activities that qualify as using the phone.


Then please quote the portion of Section D that allows it, because this says it's illegal:



> 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 presumption established by this subdivision is *rebuttable by evidence* showing that the operator was not using the device within the meaning of this section


There is no mention of "time" or "clock"


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## farmrbrown (Jun 25, 2012)

Bearfootfarm said:


> Then please quote the portion of Section D that allows it, because this says it's illegal:
> 
> 
> 
> There is no mention of "time" or "clock"


:hrm:
You've been given the answer multiple times, yet you refuse to accept it.
As a few of us have said, enough is enough, for it is written..........

http://biblehub.com/proverbs/23-9.htm


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## kuriakos (Oct 7, 2005)

"Rebuttable by evidence" is the answer. It was even in bold. I don't know why he couldn't see it. The presumption isn't an absolute. The only evidence needed to rebut the presumption (as long as the cop is honest) is the OP's testimony that she was not viewing any of the specifically mentioned prohibited items. She was smart to bail from the thread though.


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## Bearfootfarm (Jul 13, 2006)

kuriakos said:


> "Rebuttable by evidence" is the answer. It was even in bold. I don't know why he couldn't see it. The presumption isn't an absolute. The only evidence needed to rebut the presumption (as long as the cop is honest) is the OP's testimony that she was not viewing any of the specifically mentioned prohibited items. She was smart to bail from the thread though.


Testimony isn't evidence.
There's no way to prove it's true


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## kuriakos (Oct 7, 2005)

Absolutely wrong. Testimony is evidence.


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## farmrbrown (Jun 25, 2012)

kuriakos said:


> Absolutely wrong. Testimony is evidence.


You and I know that, most people who stop to think about it, know that.....but when I encounter someone that refuses to believe even the simplest of facts and insists on being argumentative just for the sake of being ornery, I can only try to educate others so that the wrong advice is not followed.

http://legal-dictionary.thefreedictionary.com/evidence
Witnesses
The most common form of evidence is the testimony of witnesses. A witness can be a person who actually viewed the crime or other event at issue, or a witness can be a person with other relevant information&#8212;someone who heard a dog bark near the time of a murder, or who saw an allegedly injured plaintiff lifting weights the day after his accident, or who shared an office with the defendant and can describe her character and personality. Any competent person may testify as a witness, provided that the testimony meets other requirements, such as relevancy.


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## kasilofhome (Feb 10, 2005)

farmrbrown said:


> You and I know that, most people who stop to think about it, know that.....but when I encounter someone that refuses to believe even the simplest of facts and insists on being argumentative just for the sake of being ornery, I can only try to educate others so that the wrong advice is not followed.
> 
> http://legal-dictionary.thefreedictionary.com/evidence
> Witnesses
> The most common form of evidence is the testimony of witnesses. A witness can be a person who actually viewed the crime or other event at issue, or a witness can be a person with other relevant informationâsomeone who heard a dog bark near the time of a murder, or who saw an allegedly injured plaintiff lifting weights the day after his accident, or who shared an office with the defendant and can describe her character and personality. Any competent person may testify as a witness, provided that the testimony meets other requirements, such as relevancy.



Ok this will be a first for me

Spot on post of value.


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## AmericanStand (Jul 29, 2014)

As the word evidence is used in court is one thing but the way people generally use evidence in conversation has a slightly meaning. In conversation evidence generally means something Akin to ia provable fact.


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## Bearfootfarm (Jul 13, 2006)

kuriakos said:


> Absolutely wrong. Testimony is evidence.


It's not proof, and it's not "hard evidence"


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## kuriakos (Oct 7, 2005)

Nobody said it was proof, but somebody did wrongly say testimony is not evidence. American Stand, since the thread is about a legal matter that may go to court, it probably makes sense to use the legal definition.


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## farmrbrown (Jun 25, 2012)

kuriakos said:


> Nobody said it was proof, but somebody did wrongly say testimony is not evidence. American Stand, since the thread is about a legal matter that may go to court, it probably makes sense to use the legal definition.



LOL.
I thought _you_ were gonna do it.

http://legal-dictionary.thefreedictionary.com/proof
Proof
The establishment of a fact by the use of evidence. Anything that can make a person believe that a fact or proposition is true or false. It is distinguishable from evidence in that proof is a broad term comprehending everything that may be adduced at a trial, whereas evidence is a narrow term describing certain types of proof that can be admitted at trial.

proof
n. confirmation of a fact by evidence. In a court trial proof is what the trier of the fact (jury or judge without a jury) needs to become satisfied the evidence shows by "a preponderance of the evidence" in civil (non-criminal) cases and "beyond a reasonable doubt" in criminal prosecutions. However, each alleged fact must be proved separately, as must all the facts necessary to reach a judgment for the plaintiff (the person filing a lawsuit) or for the prosecution (the "people" or "state" represented by the prosecutor). The defendants in both civil suits and criminal trials need not provide absolute "proof" of non-responsibility (in a civil case) or innocence in a criminal case, since the burden is on the plaintiff or prosecution to prove their cases (or prove the person guilty). (See: preponderance of the evidence, beyond a reasonable doubt)




You are the barrister, after all, but hopefully this thread has done a small service to help others in the future.:goodjob:


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## kuriakos (Oct 7, 2005)

I've come to the conclusion that it's not worth going that far in depth with argumentative people. When they are shown they are wrong, they simply change the subject slightly. But I neglected the fact that others are reading this. It's a good idea to provide information for those who are actually interested in learning rather than simply arguing. That being said, I'm not sure I was clear enough on the particulars of those two concepts to write a post as good as that off the top of my head, and I'm too lazy to go researching. I appreciate your efforts.


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## farmrbrown (Jun 25, 2012)

kuriakos said:


> I've come to the conclusion that it's not worth going that far in depth with argumentative people. When they are shown they are wrong, they simply change the subject slightly. But I neglected the fact that others are reading this. It's a good idea to provide information for those who are actually interested in learning rather than simply arguing. That being said, I'm not sure I was clear enough on the particulars of those two concepts to write a post as good as that off the top of my head, and I'm too lazy to go researching. I appreciate your efforts.



Thank you and I agree that the effort is geared towards those that may want to learn rather than those that are a hinderance.



AmericanStand said:


> As the word evidence is used in court is one thing but the way people generally use evidence in conversation has a slightly meaning. In conversation evidence generally means something Akin to ia provable fact.



This was where the misinformed assertion was misleading.
There are two kinds of legal evidence, testimony and documented, IOW oral or written, photographic, forensic, etc.
Both are used as evidence in court and of the two, oral testimony is probably more common in a traffic case.
But to be sure, testimony IS evidence.

Pick any trial you've ever seen or heard.
Eye witness testimony, police officer testimony, and others are usually the basis of the final verdict.
The "proof" occurs when the verdict is rendered, after the judge or jury accepted the evidence given as proof.

In this case, written phone records showing call activity should certainly be offered as proof as well as the defendant's own testimony stating that she wasn't making a call. There are other prohibited activities mentioned in the statute involving viewing or transmitting electronic data, however the allowed functions that don't involve that would include on/off, silencing ringer, looking at caller ID, time, date, or even using as a flashlight to see something in the darkened car.
Testifying as to what you were or weren't doing is evidence, and if the judge believes you based on all the evidence heard.......that is proof and your case is proven.
Likewise, an officer can testify that he saw the phone to your ear, saw your mouth moving, maybe even saw your car swerve in the lane and offer THAT testimony as evidence that "proves" you were violating the law.

Either way, evidence or proof is in the eye of the beholder.


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## AmericanStand (Jul 29, 2014)

I think the common saying "show me some evidence "points out how the average person thinks of evidence. 
In conversation both parties or multiple parties are giving testimony. But then someone will " show me some concrete evidence "

I don't think people do this to be an obstructionist it's just that most people do not spend much time in court


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## Bearfootfarm (Jul 13, 2006)

> I've come to the conclusion that it's not worth going that far in depth with argumentative people. When they are shown they are wrong, they simply change the subject slightly.


On this we agree, but not about to whom it applies


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## kuriakos (Oct 7, 2005)

Let's see. We were discussing the phrase "rebuttable by evidence".

I correctly stated that the defendant's testimony is evidence.

Who then incorrectly stated that testimony is not evidence?

Who was shown to be wrong about that statement?

Who then changed the subject slightly to "it's not proof or hard evidence"?

Seems clear who is trying to be helpful by providing accurate information and who is simply being argumentative.


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## AmericanStand (Jul 29, 2014)

I think both of you are right the problem is you're not having the same argument one of you is still in court and one of you was having common conversation. 
Both of you seem to be trying to clarify what you ment.


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## kuriakos (Oct 7, 2005)

We were both discussing the statute. He quoted it. Quoting a statute is generally not part of "common conversation."


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## gibbsgirl (May 1, 2013)

1. I'd check the letter of the law first as others have stated.

2. I'd make a few notes to myself about where exactly the cop was when he "saw" you holding the phone.

3. I'd see if they offer extensions on court dates. California used to offer up to 3. Many times the cop wouldn't show up to a third one, and if the cop didn't show up, you win automatically. One time, I didn't show up to a court date that I was going to dispute (too intimidated after what happened, bad cop experience). but, turns out none (out of 4-5 guys in 2 cars) showed up either, and I my ticket was dismissed because of their absence at the hearing.

4. I'd take my cell phone bill showing my name, phone number, and the date time portion of the bill to show I wasn't using the phone.

5. if you lose, you might be able to appeal. did that once too. wrote up the appeal ourselves, got notified by the clerk the day before the hearing that the judge had already decided to reverse the traffic court decision based on the fact that our appeal made sense and the cop was not going to show up the next day anyway to dispute it.

6. stay the heck outta those roads that you know (now) are filled with cops like that. got pulled over by a horrible cop last year in Massachusetts. sure killed any desire we had to ever go back. thank goodness we were on our way out.

good luck.

ps. traffic school may be an option. or you just could decide it's less hassle to pay it and be done with it. but, your insurance may go up.

we've fought them over the years, but we've also just paid some over the years. it's a real pain to deal with. plus, the funny part is, i'm actually very safe, don't speed, use signals, won't text and drive, not drinking/driving, etc.

drove it like i stole it in my younger days, but, got into an accident that wasn't my fault when i was pregnant. overnight became the poster child of safe/defensive driving. avoid traffic even to avoid risk. but, still get pulled over. don't usually get tickets, but still hate the harassment. especially when i see how a lot of badges do their driving on the road.


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## Evons hubby (Oct 3, 2005)

I have gotten several tickets over the years... mostly fixit tickets but a couple moving violations as well. I have yet to be wrongly accused so have always just paid the fine. Its a traffic ticket for pities sake, (which the OP states they are guilty of) no need to enlist the services of Perry Mason on this one.


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## gibbsgirl (May 1, 2013)

Yvonne's hubby said:


> I have gotten several tickets over the years... mostly fixit tickets but a couple moving violations as well. I have yet to be wrongly accused so have always just paid the fine. Its a traffic ticket for pities sake, (which the OP states they are guilty of) no need to enlist the services of Perry Mason on this one.


She asked for people's thoughts. Yours is perfectly valid. but, the "for pities sake" part isn't necessary, because everyone else's thoughts are also valid.

Also, our legal system has a long history of "guilty" people (whether admitted or not) enlisting Perry Mason services when they're facing court for any reason.

I hope after reading all these posts, she at least realizes she isn't stuck with one option. She said it was her first time having to consider what to do in this situation, so I'm glad she's seeing that lots of people have ideas, so she knows whatever she chooses to do, there's not one right or wrong way.


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## kuriakos (Oct 7, 2005)

And she didn't say she's guilty either. If she believes she is, then sure go ahead and pay the ticket and increased insurance rates if it's not a big deal to her. But she doesn't have to roll over and take it if she is not guilty. Who wants to give the government more money than they have to?


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## farmrbrown (Jun 25, 2012)

Yvonne's hubby said:


> I have gotten several tickets over the years... mostly fixit tickets but a couple moving violations as well. I have yet to be wrongly accused so have always just paid the fine. Its a traffic ticket for pities sake, (which the OP states they are guilty of) no need to enlist the services of Perry Mason on this one.



I'm glad you've never been wrongly accused, most people probably aren't either.
One of the hardest gaps to bridge between two different people is exchanging places when you have no experience in what the other has lived and seen.
There are numerous examples all over this website.:teehee:

If you've always been treated fairly by honest cops, it's hard to imagine waiting at a 4-way stop for a half minute until the police car stops, signal and turn in front of him, proceed lawfully in every manner, and then get a ticket for running a stop sign.
Sounds like an alien planet!

I've had it happen twice.

I've also been pulled over more than once, doing more than enough to get at least one ticket with a hefty fine, and had a nice cop having a good day who let me off with a warning.:nanner:
I'm lucky to be able to see both scenarios as a real possibility.

In this case, the OP is a woman of a certain age, a grandmother I believe, and has a spotless driving record going back a few decades.
Also, if I remember correctly, this offense can total as much as 5 points on a license AND a few months of suspension, similar to a reckless driving or DUI in some states.

With that in mind, if she feels she is truly not guilty, it makes no sense to me to accept that kind of expense without justification.









kuriakos said:


> And she didn't say she's guilty either. If she believes she is, then sure go ahead and pay the ticket and increased insurance rates if it's not a big deal to her. But she doesn't have to roll over and take it if she is not guilty. Who wants to give the government more money than they have to?



Exactly.
I don't have a problem paying for something I deserve. But if this is a case of a traffic cop knowingly giving out false tickets, to reward it only encourages more of that behavior.
It may just be that he doesn't know the law as well as he should, and mistakenly believes that merely holding a phone in your hand is a clear violation. If it were me, I wouldn't want to deprive him of a better education on his career path.
OTOH, if this is an attempt at fundraising, I would suggest a BBQ dinner or tickets to the policeman's ball would be more attractive to the general public......and legal, too.:kiss:


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## Bearfootfarm (Jul 13, 2006)

kuriakos said:


> And she* didn't say she's guilty* either. If she believes she is, then sure go ahead and pay the ticket and increased insurance rates if it's not a big deal to her. But she doesn't have to roll over and take it if she is not guilty. Who wants to give the government more money than they have to?


The first sentence in the OP says otherwise:



> A few weeks back I was stopped in NY state* for using* my cell phone while driving. we live in Pa but near the NY border.I was not talking on the cell as I don't think you should talk and drive but* did pick up the phone* to look at the time on the screen..


You can interpret the law as you like, but what it *says *is holding the phone while driving is illegal

There's no need to repeat all the interpretations already given unless you can show the specific wording *in Section D* that allows an "electronic device" to be used while the car is in motion


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## Shine (Feb 19, 2011)

AND... if anyone thinks that "Holding a Cell phone while driving" should be an illegal infraction then I am absolutely flabbergasted... Anyone who would bow down to such an accusation should pay the penalty and be a good little government owned sheep. Now those that are in that category, remember, do not look at your wrist watch, do not look at anything not associated with governing your vehicle and if you do, please report yourself to the first "peace" officer that you see as a danger to the "community". Got it?


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## kuriakos (Oct 7, 2005)

Still wrong, Bearfootfarm. Picking up a phone does not violate the ordinance, no matter how many times you say it. A presumption is just that, a presumption, nothing more.


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## Bearfootfarm (Jul 13, 2006)

kuriakos said:


> Still wrong, Bearfootfarm. Picking up a phone does not violate the ordinance,* no matter how many times you say it*. A presumption is just that, a presumption, nothing more.


You keep repeating that while the actual law says it is in fact illegal, and the officer issued the ticket based on her holding it.


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## Bearfootfarm (Jul 13, 2006)

Shine said:


> AND... if anyone thinks that "Holding a Cell phone while driving" should be an illegal infraction then I am absolutely flabbergasted... Anyone who would bow down to such an accusation should pay the penalty and be *a good little government owned sheep*. Now those that are in that category, remember, do not look at your wrist watch, do not look at anything not associated with governing your vehicle and if you do, please report yourself to the first "peace" officer that you see as a danger to the "community". Got it?


All the rhetoric and name calling doesn't change the wording of the law
It doesn't matter if anyone thinks it "should be" a law or not

It simply is a law


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## kuriakos (Oct 7, 2005)

Bearfootfarm said:


> You keep repeating that while the actual law says it is in fact illegal


No it doesn't. It clearly states what is illegal. Holding a phone is not included. Holding the phone simply provides a presumption that the person is "using" the phone. That presumption is rebuttable by evidence.


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## kasilofhome (Feb 10, 2005)

I was stopped for drunk driving pulling out of a bar.

Two streets later flashing lights.

The officer came up to the darken car with a flash light.

Shining thru out the car..I asked him to stop too Kate the two sleeping children snuggled under the blanket woke up.

The office chided me for driving after drinking with children....chided me for have gone to a bar with the kids.


Facts were I was driving from buffalo to scarsdale ...a few hundred miles.

The children slept after a day of fun at a fair. I pull off the thruwaywhile the were sleeping never entering the bar simply streching my legs and searching for the last can of diet soda...


But I was STOPPED FOR DRUNK DRIVING..Was I guilty because OF DRUNK DRIVING...BAREFOOT SEEMS TO THINK.SO IT SEEMS.


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## gibbsgirl (May 1, 2013)

:kiss:To the OP. I hope dear lady that if nothing else, reading this thread has reinforced your understanding that the courts are not supposed to make the law nor enforce the law. Their job is to interpret the law. The debating on here is a micro-example of why there are so many employed attorneys.


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## Bearfootfarm (Jul 13, 2006)

kuriakos said:


> No it doesn't. It clearly states what is illegal. *Holding a phone is not included*. Holding the phone simply provides a presumption that the person is "using" the phone. That presumption is rebuttable by evidence.


"Holding" and "using" the device is illegal according to the wording of the law
It's only your opinion that it's allowed 

I've asked you repeatedly to copy and paste the actual wording that says "holding the device" is legal, and you just keep repeating your opinions because that wording isn't there


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## kuriakos (Oct 7, 2005)

Nope. It doesn't say holding a phone is illegal. That is not my opinion. It simply does not say that. No matter how many times you say it, it's still not true.



> I've asked you repeatedly to copy and paste the actual wording that says "holding the device" is legal


An expert in the law such as yourself should know that's not how laws work. Most laws say what is NOT legal. No law lists everything that IS legal. Since the law does not prohibit holding a phone while driving, it's legal to do so. Going by your approach, it would be illegal to sing in the shower because there is no law saying it is legal.

I think I'll start referring my unlikable clients to you so you can advise them to plead guilty and I won't have to deal with them.


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## AmericanStand (Jul 29, 2014)

kuriakos said:


> I think I'll start referring my unlikable clients to you so you can advise them to plead guilty and I won't have to deal with them.



You have " unlikeable". Clients ? My uncle the lawyer told me he likes all his clients with money and if they don't have money they arnt his clients. !


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## Bearfootfarm (Jul 13, 2006)

> Nope. It doesn't *say* holding a phone is illegal.


It does say that, in the very first sentence:



> 1. Except as otherwise provided in this section, no person shall operate a motor vehicle while using any portable electronic device while such vehicle is in motion


It doesn't *say* looking at the "time" is exempt, since all exemptions are listed also:



> Subdivision one of this section shall not apply to (a) the use of a portable electronic device for the sole purpose of communicating with any of the following regarding an emergency situation: an emergency response operator; a hospital; a physician's office or health clinic; an ambulance company or corps; a fire department, district or company; or a police department, (b) any of the following persons while in the performance of their official duties: a police officer or peace officer; a member of a fire department, district or company; or the operator of an authorized emergency vehicle as defined in section one hundred one of this chapter.


http://codes.lp.findlaw.com/nycode/VAT/VII/33/1225-d


> Going by your approach, it would be illegal to sing in the shower because there is no law saying it is legal.


LOL
Going by your approach, nothing is illegal if they just claim they didn't do it


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## AmericanStand (Jul 29, 2014)

Great law .... it exempts some of the most dangerous drivers !


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## kuriakos (Oct 7, 2005)

> 1. Except as otherwise provided in this section, no person shall operate a motor vehicle while using any portable electronic device while such vehicle is in motion


You must be seeing words in there I'm not. It doesn't say anything about holding a phone.


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## Evons hubby (Oct 3, 2005)

Shine said:


> AND... if anyone thinks that "Holding a Cell phone while driving" should be an illegal infraction then I am absolutely flabbergasted...


I feel pretty much the same way about holding an open beer while driving..... but in most states I would be wrong! Never underestimate the mindset of the meddlers!


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## Evons hubby (Oct 3, 2005)

kuriakos said:


> You must be seeing words in there I'm not. It doesn't say anything about holding a phone.


True, but it does say "electronic device" which a cellphone fits in that category.... it also mentions something about viewing a screen.


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## kuriakos (Oct 7, 2005)

Yvonne's hubby said:


> True, but it does say "electronic device" which a cellphone fits in that category.... it also mentions something about viewing a screen.


The phone part isn't in dispute. The using part is, although there is no reasonable dispute. It's quite clear except for one ambiguous catch-all phrase that nobody is even arguing. Viewing the screen is not forbidden. Viewing images, email, texts, etc. (while holding the phone) is forbidden.


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## Bearfootfarm (Jul 13, 2006)

kuriakos said:


> You must be seeing words in there I'm not. It doesn't say anything about holding a phone.


A phone is a portable electronic device as defined in the statute
Why pretend you don't know that?



> The phone part isn't in dispute. The using part is, although there is no reasonable dispute. It's quite clear except for one ambiguous catch-all phrase that nobody is even arguing. Viewing the screen is not forbidden. Viewing images, email, texts, etc. (while holding the phone) is forbidden.


There's no dispute as to "using" either, as that is also clearly defined, and "holding" fits that definition. 

You still haven't shown any exemption for "time', or explained why the numbers on the screen aren't an "image".


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## Evons hubby (Oct 3, 2005)

Based on the various lines of thought in this thread I recommend the following defense. 

"Your honor, I was not using my cellphone for a phone call nor for texting.... I was just checking to see how much time I had left to get to the scene of the impending accident.... I hate to be late for such events."

Defense rests


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## kuriakos (Oct 7, 2005)

Bearfootfarm said:


> A phone is a portable electronic device as defined in the statute
> Why pretend you don't know that?


Not pretending I don't know that, as made clear by the next post of mine you quoted. Nobody has disputed that a phone fits the definition. The dispute is over using, and there is no real dispute, just your argumentative nonsense. You clearly don't know how laws work, yet you insist on pontificating.



> There's no dispute as to "using" either, as that is also clearly defined, and "holding" fits that definition.


No it doesn't. The definition does not say holding is using. The PRESUMPTION says holding a phone is presumed to be using it. But a presumption is not a definition and a presumption is not a prohibition. Prohibitions outlaw activities. Presumptions do not. And as the law states, the presumption is rebuttable by evidence. Not that the law needs to say that, since all legal presumptions are rebuttable by law. One of the most basic legal concepts there is.



> You still haven't shown any exemption for "time',


Again, that's not how the law works. I don't have to show you anything. You already showed us the law that doesn't forbid what you say it does. It doesn't have to list every situation the law does not apply to. If the law does not specifically forbid something, it is not forbidden.



> or explained why the numbers on the screen aren't an "image".


It could be stretched to mean that, but only a moron would argue it in court so I don't see any need to rebut it.


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## kuriakos (Oct 7, 2005)

Yvonne's hubby said:


> Based on the various lines of thought in this thread I recommend the following defense.
> 
> "Your honor, I was not using my cellphone for a phone call nor for texting.... I was just checking to see how much time I had left to get to the scene of the impending accident.... I hate to be late for such events."
> 
> Defense rests


You're the guy that wants to be allowed to hold a beer while you drive and you think glancing at the time on the screen of a phone is going to cause an accident?


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## Kristinemomof3 (Sep 17, 2012)

Oh my, just pay the ticket & move on. Buy a watch so it doesn't happen again.


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## Bearfootfarm (Jul 13, 2006)

> The dispute is over using, and there is no real dispute, just *your argumentative nonsense*. You clearly don't know how laws work, yet you insist on pontificating.


LOL

Anyone who disagrees with you is "argumentative", but you still can't show me where there is an exception in Section D for "time" when it lists all the exceptions allowed.

For a supposed lawyer, you're not that convincing, because you just want to keep talking about me.

The repetition has become boring


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## kuriakos (Oct 7, 2005)

I'm not trying to convince you and I couldn't care less about you. I've talked about your nonsense, not you. I don't feel the need to convince argumentative people of anything. And plenty of people disagree with me without being argumentative.

I've explained numerous times that there does not need to be an exception in the law for something to be legal. There is not law making it illegal, therefore no exception needed. This is for the benefit of anyone else who may care, not for ignorant people who think they already know everything.

If the repetition is boring, stop repeating your misinformation. Simple enough.


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## wr (Aug 10, 2003)

I think that this thread has reached the point where the is no further information to share.


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