Did you know that New York state has the toughest laws in the country when it comes to using a cell phone while driving? Since May 31, 2013, any violation involving cell phone use while driving will add 5 points to your driving record, a large fine, a hefty insurance premium increase, and could even cause your license to be suspended if you are under probationary or junior privileges.

The reason for these tough new penalties? As cell phone usage started becoming more and more widespread, the NYS Department of Motor Vehicles’ (DMV) statistics showed a 143% increase in cell phone-related accidents between 2005 and 2011. In 2011, there were 25,165 crashes involving deaths and injuries caused by distracted driving. And in 2011 and 2012, our state had a 234% jump in the amount of texting-while-driving tickets.

Because these infractions are becoming so much more commonplace, legislators decided to crack down on cell phone use while operating a motor vehicle. Their intention was to make the roads safer for everyone on them. As a result, texting or talking while driving now carry stiffer penalties than most speeding charges.

What do the statues say?

There are two New York State statutes that prohibit the use of mobile devices and cell phones while driving: NY VTL § 1225-C and NY VTL § 1225. The first prohibits the driver from using the phone to engage in a call and the other prohibits sending or receiving text messages while driving.

What NY VTL § 1225C(2)(a) states is that “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.” To be found guilty, the State must be able to prove that the defendant:

1. Was driving the vehicle on a public highway

2. Was using a cell phone while doing so

3. Was engaged in a phone call.

What if I used my phone in a parking lot or while stopped at a traffic light?

If you engaged in a call or texted while in a parking lot or while standing still at a light or in a traffic jam, the ticket would be invalid.

Definitions to Know

Below are some related terms you might find on your ticket, hear in court, or come across while researching your infraction:

Cell phone use: NY  law defines cell phone use as “holding a mobile telephone to, or in the immediate proximity of the ear.”

Engaged in a call: According to New York VTL § 1225C(1)(f), being engaged in a call means “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.”

Immediate proximity of the ear: Immediate proximity of the ear is specified by NY VTL § 1225C(1)(g) as “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.”

Hand-held mobile phone: “A mobile telephone with which a user engages in a call using at least one hand.”

Hands-free mobile phone: “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.”

What does it all mean?

Basically, the statues can be boiled down to actions that are and are not permitted by NY State law. Under the law, NY DRIVERS ARE ALLOWED TO:

  • operate a phone on a highway when the vehicle is stopped at a traffic light, at a stop sign, while stuck in traffic, or not in motion for any other reason
  • use a cell phone to make a call while the vehicle is in motion as long as the phone is not being held in the driver’s hand
  • hold a cell phone while driving only when activating or deactivating a call


  • hold the cell phone near their ear while engaged in a call while driving and the vehicle is in motion
  • hold the phone while talking or listening to a call while the vehicle is moving
  • hold the phone to dial a call while the vehicle is in motion

Should you contact a lawyer?

Even if you believe you are guilty, it is always in your best interest to contact a lawyer before appearing in court or pleading guilty.

Our knowledge of the law and experience with these types of cases allows us to build strong defenses for our cell phone use clients — and fines and points can often be reduced

Let us walk you through your options and how the process works. For more information and a free consultation, contact The DeMasi Law Team  (315)-949-0065 today.