A driver testified, credibly, that he hadn't made a call or sent a text near the time he was stopped. His phone bill backed him up — no record of any call or message. He still lost. A 2014 City Court of Rye decision, People v. A.N., explains why: he was ticketed under an entirely different statute than the one at issue in Wells and Sweeney, and that statute doesn't ask the question a phone bill answers.
Two Separate Statutes, Not One Law
New York regulates phones behind the wheel through two distinct statutes, passed years apart, that cover different conduct:
- VTL § 1225-c, the older "mobile telephone" law, prohibits only one thing: using a hand-held phone "to engage in a call" while driving.
- VTL § 1225-d, enacted in 2009 as its own separate law, prohibits "using" any "portable electronic device" — a far broader category that reaches texting, emailing, browsing, and viewing or transmitting images, regardless of whether a call is involved at all.
Wells and Sweeney, discussed in other posts, were both prosecuted under § 1225-c. A.N. was charged under § 1225-d instead, and that distinction is the whole case.
A state trooper patrolling I-95 testified that he saw A.N. driving with a cell phone held 8 to 12 inches from his head. The trooper couldn't say what A.N. was doing with the phone or what was on the screen — just that he was holding it. A.N. was charged with violating VTL § 1225-d.
A.N. testified that he'd made calls earlier in the trip using his car's Bluetooth, and that he was using his car's built-in GPS to navigate home from an unfamiliar area. He introduced his cell phone bill, which the prosecution conceded showed no call or text at the time of the stop.
Case on Point
The City Court held that the trooper's testimony that A.N. was holding the phone while driving triggered the statutory presumption of use, and that A.N.'s credible testimony denying a call or text, combined with the confirmed absence of any record on his phone bill, was not sufficient to rebut it.
People v. A.N., 44 Misc. 3d 269 (City Ct. of Rye 2014)
Why the Same Evidence Doesn't Work the Same Way
This is the crux of it: a phone bill is built to answer a § 1225-c question, not a § 1225-d one. It shows what calls and texts were actually sent or received. It cannot show whether a driver was scrolling a screen, typing a message that never got sent, viewing a photo, or doing any of the other things § 1225-d specifically defines as "using" a device — including use for future communication, not just present.
Under § 1225-c, ruling out a connected call goes a long way, because a connected call is the only thing the statute prohibits. Under § 1225-d, ruling out a connected call rules out almost nothing, because the statute was written to reach conduct that a phone bill was never designed to capture. Defense counsel bringing the same rebuttal evidence to a § 1225-d case that worked in a § 1225-c case, like Wells, is bringing proof of the wrong thing.
Key Takeaway: VTL § 1225-c and § 1225-d are separate statutes covering different conduct, and rebuttal evidence has to match the statute actually charged. A phone bill can defeat a § 1225-c call charge but often cannot touch a § 1225-d device charge, because the device statute reaches conduct that leaves no billing record at all.
Warning: A credible denial alone rarely wins. The court in A.N. found the defendant believable and still ruled against him, because credibility and evidentiary sufficiency are two different questions — the burden is on the driver to affirmatively rebut the presumption, not just to seem honest.
Why the Legislature Built It This Way
The court noted that lawmakers could have made merely holding a device a violation outright, or could have skipped the presumption entirely and required police to prove actual use. They did neither — instead creating a rebuttable presumption that shifts the burden to the driver once an officer testifies the device was held in a conspicuous manner while the vehicle was moving. For anyone contesting a device ticket, that means the real fight is often not about what the officer saw, but about what specific evidence exists to show what the driver was actually doing with the device in that moment.
Ticketed for Holding a Phone Even Though You Weren't on a Call?
New York's device law covers far more than phone calls, and a clean phone bill may not be enough to beat it. Find out what the statute actually requires you to prove.
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