A driver can be doing exactly the same thing — holding a phone to their ear — and still end up charged under the wrong law. A 2019 Monroe County case shows how much that distinction can matter, and how persistence after an initial denial turned it into a full dismissal.
The Facts of the Case
Scanlon was ticketed by a New York State trooper for operating a motor vehicle while using a portable electronic device, in violation of VTL § 1225-d(1). The trooper's own supporting deposition described the basis for the stop: Scanlon's vehicle was traveling on State Route 104 "with the operator holding cell phone to his right ear."
Scanlon's attorney moved to dismiss, arguing he'd been charged under the wrong statute — that holding a phone to your ear describes the conduct covered by VTL § 1225-c, the mobile telephone statute, not § 1225-d, the portable electronic device statute. The court initially denied the motion without oral argument, reasoning that § 1225-d's own definition of "portable electronic device" includes "any hand-held mobile telephone." Scanlon's attorney pointed out he'd never been given the chance to argue the motion and moved to reargue — which the court granted.
The Question on Reargument
Was a driver alleged to be speaking on a cell phone, but charged under the portable electronic device statute, actually charged under the wrong law?
Case on Point
The court held that a defendant alleged to be speaking on a cell phone while driving should have been charged under the mobile telephone statute, not the portable electronic device statute. While § 1225-c specifically addresses using a phone to engage in a call, § 1225-d makes no reference to making or receiving a phone call at all. The court granted the motion to dismiss.
People v. Scanlon, 63 Misc.3d 697 (2019)
Why the Overlap in Definitions Didn't Control
The government's strongest argument was textual: § 1225-d's own definition of "portable electronic device" literally includes "any hand-held mobile telephone." Taken at face value, that would mean every phone call charge could also be brought as a portable electronic device charge. The court agreed with the defense that reading the statute that way would make § 1225-c pointless — there'd be no reason for a separate mobile telephone law if the broader statute already covered the same conduct.
Instead, the court looked to what each statute actually prohibits. Section 1225-c's definition of "using" centers on holding the phone to or near the ear to engage in a call. Section 1225-d's definition of "using" centers on transmitting, viewing, or reviewing data — texting, browsing, sending images — and never mentions phone calls at all. Since the trooper's own deposition described Scanlon holding the phone to his ear, that was call-related conduct falling squarely under § 1225-c, not § 1225-d.
Key Takeaway: The fact that a device could technically fit the broad definition in one statute doesn't mean it was charged correctly. What matters is which specific conduct the officer actually described — and if that conduct doesn't match the statute charged, the case can be dismissed regardless of how the ticket was written up.
What This Means for a Defense
Scanlon offers a specific, practical checklist for any electronic device ticket:
- Read the supporting deposition closely. The officer's own description of the conduct — phone to the ear versus looking at a screen — often reveals whether the correct statute was charged.
- Remember the statutes aren't interchangeable just because they overlap on paper. A device can technically fit both definitions, but the specific conduct alleged still has to match the specific statute charged.
Ticketed Under the Portable Electronic Device Statute for Talking on the Phone?
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