In a pair of unrelated matters involving the prohibition against the use of cellphones while driving, an upstate town judge has held that using a phone while stopped at a red light violates the statute, but using the "Siri" feature on an iPhone does not.
The statute in question, §1125-c (2a), prohibits an individual from operating an "in motion" vehicle while using a mobile phone "to engage in a call."
It also creates a rebuttable presumption that a motorist holding a cellphone in the proximity of his ear while the vehicle is in motion is engaging in a call.
Both of those provisions came into play in recent Brighton Town Court matters before Justice Karen Morris.
In People v. Winterhawk,11110535, defendant Dakota Winterhawk was charged with violating §1225-c(2a) after a police officer saw him holding a cellphone to his ear while stopped at a traffic light. Winterhawk admitted he was listening to his voicemail. At issue was whether a vehicle stopped at a red light is "in motion" under the statute.
Morris found that it is.
The judge distinguished stopping at a light from pulling over to the side of the road or using a phone while parked in a lot. She said that during the "pause" that occurs at a traffic signal, the motorist needs to be alert to changing conditions, such as dodging an out-of-control vehicle or inching forward to proceed expeditiously once the light changes.
"Considering the legislative purpose of the statute to protect against accidents, to say that the car is not in motion while paused at a red light does not comport with the reality of the situation," Morris wrote.
In People v. Welch, 12070533, defendant Andrew Welch was charged with using a mobile phone while operating a vehicle when an officer saw him driving on a Brighton street while talking into a telephone he held to his chin. Welch admitted he was talking into the phone, but claimed that he was using the "Siri" feature, a voice-activated "personal assistant," to activate a call.
Morris found him credible and said the evidence "rebuts the inference that he was engaged in a call and instead establishes that he was activating a call, an action that is not illegal."
Winterhawk appeared pro se. Joseph Miller of Rochester represented Welch. Assistant District Attorney Megan Hausner prosecuted both matters.
The state has attempted to clamp down on distracted driving and in July 2011 Governor Andrew Cuomo signed legislation giving police the power to stop drivers for using a handheld electronic device in a moving vehicle. Previously, while it was illegal for a motorist to use a cellphone while driving, it was a secondary traffic offense—meaning the driver could only be ticketed for phone violation if first stopped for another reason.
At the same time, the state increased the penalty for using a cellphone while driving to three license points from two.
According to the Department of Motor Vehicles, in the first year after the new law took effect tickets for texting increased dramatically while tickets for cellphone use fell considerably.
Statistics show that between July 2011 and July 2012, there were nearly 20,000 tickets issued for texting, up from about 4,500 the year before. However, while there were 296,094 tickets issued for using a cellphone between July 2010 and July 2011, that number dropped to 218,323 after the law was changed. Nicholas Cantiello, spokesman for the Department of Motor Vehicles, said he could not explain the trend.
New York City counties account for the vast majority of texting/cellphone tickets.
Records show that between July 2011 and July 2012: 45,910 tickets were issued in Brooklyn, 45,036 in Manhattan, 38,947 in Queens, 12,763 in the Bronx and 5,114 on Staten Island. In each case, the total number of issued tickets was higher before the law was changed but the number of tickets issued for texting increased significantly. For example, in the Bronx there were 91 tickets issued for texting before the law was fortified, and 900 the following year, according to the DMV.
In Monroe County, where the Winterhawk and Welch matters occurred, tickets for cellphone use decreased to 4,516 from 5,739 after the law changed. However, tickets for texting increased to 687 from 110.
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