New York's mobile telephone law doesn't ban hands-free devices — it specifically protects the act of putting one on. A 2009 Westchester County case shows just how literally the statute's hands-free carve-out applies, even to the brief moment of physically attaching the earpiece.
The Facts of the Case
Hudacek was convicted in the Justice Court of the Village of Tuckahoe of using a mobile telephone while driving, in violation of VTL § 1225-c. Her defense was that she hadn't been holding a phone to make a call at all — she'd been attaching a Bluetooth earpiece, a hands-free device, to her ear. She testified that doing so takes two or three seconds, and that with long hair, she had to adjust it as she put it on.
The Question on Appeal
Does attaching a hands-free earpiece to your ear count as "using" a mobile telephone under the statute?
Case on Point
The Appellate Term held the evidence legally insufficient to sustain the conviction, reversing and dismissing the traffic ticket. The court found that Hudacek's account of activating a hands-free device by attaching the earpiece to her ear described conduct the statute expressly does not prohibit.
People v. Hudacek, 26 Misc.3d 55 (2009)
The Statute's Hands-Free Carve-Out
Vehicle and Traffic Law § 1225-c bans using a mobile telephone to engage in a call while driving — but it draws a precise, deliberate exception for hands-free devices. A "hands-free mobile telephone" is defined as one with an internal feature or attachment that lets a user engage in a call without using either hand — and critically, that definition applies whether or not a hand is needed to activate, deactivate, or initiate the device in the first place.
The statute goes further still: "engage in a call" is defined to mean talking or listening on a hand-held phone, but it expressly does not include holding a phone to activate, deactivate, or initiate a function. In other words, the Legislature anticipated exactly this scenario — a driver briefly using a hand to turn a hands-free device on — and wrote it out of the statute's reach.
Hudacek's testimony that she was attaching a Bluetooth earpiece, not holding a phone to talk, fell squarely within that exclusion. The court found nothing in the record establishing she had actually engaged in a call, as opposed to simply putting on the device that would have let her do so hands-free.
Key Takeaway: New York's mobile telephone statute doesn't just permit hands-free calling — it specifically protects the physical act of activating a hands-free device, even where a hand briefly touches the phone or earpiece to do it. That's written into the definitions themselves, not left to inference.
What This Means for a Defense
Hudacek is a useful reference point for any case where the actual dispute is over what the driver was doing with the device, not whether a device was present:
- Know the statute's specific language. The hands-free exception isn't a loophole courts invented — it's built directly into how "using" and "engage in a call" are defined, and it explicitly covers activation, deactivation, and initiation.
- A brief hand movement doesn't defeat the exception. The statute anticipates that turning on a hands-free device takes a moment and may require a hand — that doesn't convert the conduct into a prohibited call.
- The device itself matters. Whether the device at issue is actually capable of hands-free operation, and whether the driver's account of what they were doing with it is credible, are the questions that decide these cases.
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