Driving With Cell Phones

Every time I get in my car, I see other drivers on cell phones.  A lot.  I wish I had some way to warn them….some signal that said, “5 points!”.  I thought about holding up five fingers, but anytime fingers or hand gestures get involved there is ample room for misunderstanding.  So I became inspired to write about driving with cell phones.  DWCP?  Maybe the name will catch on.

What used to be considered trivial has become costly.  DWCP carries a fine of up to $250  for first offense, and loss of license & up to a $400 fine for a third conviction in an 18 month period.  Studies like this one prompted NY to increase the seriousness of this offense:  http://www.unews.utah.edu/old/p/062206-1.html

Use of a hand-held cell phone while driving is prohibited under Vehicle & Traffic Law § 1225-c (2)(a).  DMV regards this as a “serious” offense and imposes 5 points for a conviction.  DMV’s regulations adopted in 2012 can result in a review of one’s entire driving history under certain circumstances, and a finding one is a “problem driver” resulting in special restrictions on the license, or a loss of license for years if you have incurred 25 points (see: 15 NYCRR § 136), “Serious” has taken on a whole new meaning.

One cell phone conviction has you 1/5 of the way there.

“Distracted driving” is the general catch phrase for using phones or other electronic devices.  Not just cell phones are forbidden.  VTL § 1225-d  bans the use of any portable electronic device while driving.  GPS devices, iPads, laptops… ALL of them are encompassed by this statute.

This is a good source of information about the relevant studies: http://www.nsc.org/learn/NSC-Initiatives/Pages/distracted-driving-research-studies.aspx

Some people seem to think they are not breaking the law if the phone is on speaker and held away from the head.  Nope.  That does NOT work.  If it is in your hand, you are in violation.

Some suggestions:  Blue tooth devices, speakers attached to the sun visor & linked to your phone, and cell phone holders affixed to the dashboard allowing for “hands free” operation.  But while “hands free” will place you in compliance with the law, studies suggest the best practice is to not use cells in any manner while driving. It might take a few years, but the law may eventually ban using cell phones in any manner while driving.  http://www.nsc.org/DistractedDrivingDocuments/Cognitive-Distraction-White-Paper.pdf

Is it worthwhile to hire a lawyer if you receive one of these tickets?  No good attorney should make a promise as to a result, and with that in mind, the best answer is “usually”.  Depending upon the circumstance and the driver’s record, I have found many District Attorneys  willing to offer a 2 point violation such as Disobeying a Traffic Control Device as a plea bargain.  Such a plea can often be accomplished thru the mail, avoiding time in court.  Sometimes an on-line course designed to educate about the dangers of DWCP is required.

In my view, investments of legal fees and time for the course are well worth it.  If you collect 11 points in 18 months, DMV takes your license.  If you receive 6 point in the same period, DMV charges you an additional administrative fee for the next 3 years.  And, a 5 point conviction is a giant leap toward the 25 point-lose-your-license-because-you-are-a-problem-driver mark.

If the DA doesn’t want to make a deal, you always have the right to go to trial.    Sometimes the ticketed driver is innocent, and sometimes the prosecution just doesn’t have the evidence or ability to convict. This is about damage control.  Follow the law, but if you don’t and are charged, or if you are ticketed but innocent, a knowledgeable lawyer can usually help.