New York actually has two separate laws governing phone use behind the wheel, and the line between them is easy to miss. Getting the distinction right matters, because it can be the difference between a ticket that's legally sound and one that isn't.
Two Different Laws, Two Different Things
Vehicle and Traffic Law § 1225-c prohibits using a mobile telephone to engage in a call while driving. Vehicle and Traffic Law § 1225-d prohibits using a portable electronic device — texting, browsing, viewing images, playing games — while driving. They sound similar, but they're not interchangeable.
Case on Point
The court held that VTL § 1225-c addresses a driver using a cell phone to engage in a phone call, while VTL § 1225-d addresses broader electronic device use but makes no reference to phone calls at all. Where a defendant is alleged to have been speaking on a cell phone while driving, the proper charge is under § 1225-c, not § 1225-d.
People v. Scanlon, 63 Misc.3d 697 (2019)
That distinction isn't just academic. In Scanlon's case, the ticket had been issued under the wrong statute — and that discrepancy was enough to matter to the outcome.
The Mobile Telephone Law: What Counts as "Using"
Under § 1225-c, "using" a mobile telephone means holding it to, or in the immediate proximity of, the user's ear. The statute carves out an exception for hands-free devices — those that let a driver engage in a call without using either hand — and courts have held that merely holding a phone to activate a hands-free function isn't a violation.
The statute also builds in an evidentiary shortcut for the prosecution: an operator who holds a mobile telephone to, or in the immediate proximity of, their ear while the vehicle is in motion is presumed to be engaging in a call. That presumption is rebuttable by evidence tending to show the driver wasn't actually engaged in a call.
Case on Point
The court reversed a conviction where the defendant's own statement — that she was attaching a hands-free earpiece to her ear when observed — described conduct the statute doesn't prohibit. Holding a phone to activate, deactivate, or initiate a function is expressly excluded from "engaging in a call" under the statute.
People v. Hudacek, 26 Misc.3d 55 (2009)
The Presumption Can Be Rebutted — But It's Genuinely Hard
That presumption shifts the burden to the driver once it arises — and three cases show just how the rebuttal effort can play out.
Case on Point
The court found the defendant not guilty of the cell phone charge where she testified, without compelling rebuttal from the prosecution, that her attempted call never connected and that she had been attempting it while stopped at a red light, not while driving.
People v. Deep, 12 Misc.3d 1137 (2006)
Case on Point
The Appellate Term found a conviction against the weight of the evidence where the defendant testified he had not been engaged in a call at the specific time the officer observed him, and supported that testimony with a portion of his phone bill confirming no call had occurred.
People v. Wells, 57 Misc.3d 21 (2017)
Case on Point
By contrast, the Appellate Term affirmed a conviction where the defendant claimed he'd been holding a wallet rather than a phone — a claim the trial court simply didn't believe — and where his proffered phone records were properly excluded because he never connected those records, which reflected an account owned by his father, to the specific phone he possessed at the time of the stop.
People v. Sweeney, 66 Misc.3d 12 (2019)
Key Takeaway: Rebutting the presumption isn't just about telling your side of the story — it takes specific, corroborating evidence tied to the exact date, time, and phone in question. A bare denial the court doesn't find credible, or records that aren't properly connected to your device, won't likely be enough.
The Portable Electronic Device Law: A Broader Net, With Real Limits
Section 1225-d covers more than just texting — the statute's catchall reaches any electronic device used to input, write, send, receive, or read text for present or future communication. A person who holds such a device in a conspicuous manner while driving is presumed to be using it, and that presumption is rebuttable just like the mobile telephone statute's.
Case on Point
The court held that typing a text message without contemporaneously sending it still constitutes prohibited "using" under the statute, because the law reaches holding a device for the purpose of present or future communication — not just active transmission.
People v. A.N., 44 Misc.3d 269 (2014)
Case on Point
The Appellate Term held that a trooper's testimony describing a flat black cell phone held horizontally in the defendant's hand was legally sufficient to invoke the statutory presumption of use.
People v. Vogt, 70 Misc.3d 30 (2020)
But the statute doesn't reach everything a phone can do. Two cases mark its outer limits:
Case on Point
The court held that using a cell phone merely as a clock does not violate § 1225-d, since checking the time is not one of the uses the statute prohibits.
People v. Riexinger, 40 Misc.3d 623 (2013)
Case on Point
The court held that a handheld electronic dictation device the defendant spoke into while driving was not a "portable electronic device" under the statute, because the prosecution failed to establish the device could display, send, or receive text.
People v. Ingber, 58 Misc.3d 49 (2017)
What Convictions Cost
Both a mobile telephone conviction and a portable electronic device conviction currently carry 5 points on a New York driver's license. Fines for first offenses are between $50-$200 and escalate for repeat violations within 18 months, and both violations carry a mandatory state surcharge of $93 in town and village courts and $88 in city courts on top of the fine.
What This Means for a Defense
Given how these two statutes actually work, a few things matter most in fighting a ticket:
- Was the right statute even charged? A cell phone call charged under § 1225-d instead of § 1225-c, or vice versa, is a real defect worth raising — as Scanlon shows.
- Does the presumption actually apply to what the device was doing? Checking the time or speaking into a non-texting recording device may fall outside the statute entirely, per Riexinger and Ingber.
- If rebutting the presumption, is there real corroboration? A bare denial rarely succeeds. Phone records that are properly authenticated and clearly tied to the specific device and moment in question — as in Wells — carry far more weight than an uncorroborated account, as Sweeney shows.
- How specific was the officer's observation? Vague testimony carries less weight than the kind of detail — screen illumination, thumb movement, precise hand position — that courts have found sufficient in cases like Vogt.
Ticketed for Cell Phone or Portable Electronic Device Use?
These two statutes cover different conduct and carry real evidentiary presumptions — and charging the wrong one can matter. Find out whether your ticket actually holds up.
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