BACKGROUND:

This matter came before the Court for Trial held on May 15, 2012 as a result of the issuance of a Simplified Traffic Information No. BD2103422 by the Police Department of the Village of Kings Point on January 13, 2012 (hereinafter referred to as the "STI") under Section 1225-d of the Vehicle and Traffic Law of the State of New York, (hereinafter referred to as the "VTL") which charged the defendant with "Driving while texting". The Court reserved decision at the conclusion of the trial in order to study the relevant law and apply the law to the testimony and facts presented at trial to arrive at a decision in this matter.

RELEVANT TESTIMONY:

The relevant testimony presented at trial was as follows:

Kings Point Police Officer Flannelly issued the ticket to the defendant at 2:40 pm on the afternoon of January 13, 2012. It was determined through the testimony of Officer Flannelly, that just prior to issuance of the ticket, he was parked in a stationary position facing northbound on Station Road about 30 feet south of the intersection of Station Road and Hicks Lane, where East Shore Road, Hicks Lane and Station Road come together at the traffic light located at that intersection. While parked in his vehicle observing the intersection, Police Officer Flannelly testified that he had a clear view of the traffic light at the intersection, and cars passing through the intersection. He testified that he observed that the defendant had a cell phone in his hand while he was driving and that he first noticed the defendant "while he was stopped on Hicks Lane". This occurred when the defendant was going north on East Shore Road, and then was headed in a westerly direction coming onto Hicks Lane at the intersection of Hicks Lane and East Shore Road where there is a traffic light. Officer Flannelly testified that he saw the defendant looking down at his phone while "driving" and that the defendant was not talking on [*2]the phone. Officer Flannelly testified that when he saw the defendant viewing the phone, the defendant's car was being "operated". Further testimony indicated that the officer gave the defendant the ticket because the defendant was "looking down at the phone which I saw, and he appeared to be texting." The defendant's left hand was closest to the officer from the position of his observation. The officer, when questioned as to exactly where the phone was being held by the defendant, testified that it was "right about here" while pointing to his chest. Thereafter the officer pursued the defendant and when he did the traffic stop, he testified that the phone was located in the defendant's lap. The officer issued the STI charging the defendant with texting while driving under VTL Section 1225-d. On cross examination by the defendant, Officer Flannelly stated "I saw the phone in your hand as you were driving. You were looking down at your phone as you were driving."

The defendant testified that he was stopped at the traffic light at the intersection and saw that his Bluetooth wasn't on. He then turned it on. He stated that he wasn't texting and driving, and that he told the officer that he "was trying to adjust my Bluetooth because I always drive with it on." He further testified that "I was trying to turn my Bluetooth on while I was stopped at the light, and that's what I did. The light had turned green afterward and I proceeded." The defendant further testified that he was holding the phone low in a position that the defendant motioned to which would have been near the steering wheel and not at his head. Defendant stated that "I would never text and drive." Defendant also testified he would never text while driving due to the fact that two years earlier he had experienced a "near miss" when another driver, who he thought was texting, almost side swiped the vehicle he was driving, and as a result thereof, the defendant was against texting while driving and he never texts while driving.

DISCUSSION OF THE RELEVANT LAW:

The Court has carefully reviewed what it believes to be the relevant sections of the VTL which are set forth in both Section 1225-c "Use of mobile telephones", and Section 1225-d "Use of portable electronic devices" for the application of the law to the facts of this case. Since the defendant was only charged with a violation under Section 1225-d, the Court will limit its review and discussion as to only a review of Section 1225-d of the VTL.

Section 1225-d of the VTL took effect on November 1, 2009, but was recently amended by the legislature to expand the definition of what constitutes texting and prohibited actions by drivers while their vehicles are in motion. The recent amendment to Section 1225-d was signed into law on August 26, 2011 on which day it became effective. VTL Section 1225-d was enacted for the purpose of creating a law that is supposed to deter drivers from the dangers and distraction that texting while driving has caused. There are numerous news reports in the media regarding serious accidents, injuries and fatalities that have occurred over the last few years resulting from drivers being distracted while using hand held devices. The Court takes judicial notice of the serious nature of the problems that have developed as a result of drivers texting or using hand held devices while driving and the importance of the potential protection of the public that this section of the VTL was attempting to address, and the reasons for which it was enacted. [*3]

Section 1225-d of the VTL says in Section 1 that "Except as otherwise provided in this section, no person shall operate a motor vehicle while using any portable electronic device while such vehicle is in motion". In Section 1225-d 2, the law defines a "Portable Electronic Device" in subsection (a) thereof, and defines the term "Using" in Subsection (b) thereof. The term "Using" as defined in Section 1225-d 2 (b) states that "Using" shall mean holding a portable electronic device while viewing, taking or transmitting images, playing games, or composing, sending, reading, viewing, accessing, browsing, transmitting, saving or retrieving e-mail, text messages, or other electronic data". Section 1225-d 4 states that "A person who holds a portable electronic device in a conspicuous manner while operating a motor vehicle is presumed to be using such device. The presumption established by this subdivision is rebuttable by evidence tending to show that the operator was not using the device within the meaning of this section."

The Court notes that Section 1225-c was enacted prior to the enactment of Section 1225-d. The Court is also aware that Section 1225-c (f) states, with regard to use of a cell phone that: "(f) "Engage in a call" shall mean talking into or listening on a hand-held mobile telephone, but shall not include holding a mobile telephone to activate, deactivate or initiate a function of such telephone." However, there is no such similar section with regard to activation, deactivation or initiating a function of the telephone in Section 1225-d. As such, Section 1225-c permits activation, deactivation or initiating a function of the telephone, but Section 1225-d is silent on this point.

FINDINGS OF THE COURT:

Based upon the testimony presented at trial, the Court finds that the defendant was stopped at a red light at the intersection of Hicks Lane, East Shore Road and Station Road heading westbound onto Hicks Lane having come northbound on East Shore Road to the point of that intersection. At approximately 2:40 pm on January 13, 2012 Officer Flannelly first observed the defendant, while defendant was stopped on Hicks Lane, holding a hand held telephone device in the defendant's left hand at approximately chest level.

The Court finds that there was no testimony by the officer that indicated that the defendant was looking down at the telephone or operating the phone in any manner after the defendant began driving when the light turned green when the vehicle would have been in motion. The Court finds that the officer's testimony described the situation while the defendant was stopped and that through the defendant's testimony the defendant was stopped at a red traffic light at the intersection. The Court finds that the defendant, while stopped at the traffic light, was viewing the phone and that the defendant was trying to engage the phone to activate his Blue Tooth device trying to activate the blue tooth feature. The court finds through the testimony of both Officer Flannelly and the defendant, that the defendant was holding the phone near the steering wheel.

The court finds that the defendant was operating his motor vehicle and was driving at the time the ticket was issued, however, the testimony of the officer concerned what he observed while the [*4]defendant's car was stopped at the red traffic light and not while defendant's vehicle was in motion. There was no testimony by the officer that indicated that he observed the defendant looking down at the hand held device or texting while the vehicle was in motion.

The court finds that although the defendant was driving and operating his motor vehicle at the time of the incident, he was not "moving" at the time the officer observing him looking down at the hand held device or doing something with the hand held device that appeared to be "texting" while the vehicle was in motion.

The Court notes that there was no evidence or testimony from either the People or the defendant that introduced cell phone records of the defendant's use of his cell phone on the date, and at the time of the traffic stop, that would support either the defendant or the People's position in this case as to whether or not the defendant was in fact engaged in texting or was using the phone in a manner prohibited by VTL Section 1225-d 2 (b) while the vehicle was stopped or in motion.

The Court was not convinced beyond a reasonable doubt that the defendant was "Using" the hand held device in violation of Section 1225-d 2 (b) or that defendant violated the prohibitions of Section 1225-d 4 because there was no proof introduced that indicated that the defendant was utilizing the hand held device while the vehicle was in motion. Although there was proof that the defendant was driving and operating his motor vehicle, there was no proof introduced by the People that indicated that the defendant was driving or operating the vehicle while using the hand held device, while the vehicle was in motion.

DECISION OF THE COURT:

Based upon the foregoing discussions of the testimony, the findings, and the law, the Court does not feel that the People have proven their case beyond a reasonable doubt that the defendant was texting in violation of the applicable sections of VTL Section 1225-d while the vehicle was in motion. Accordingly, the Court hereby acquits the defendant of the charge of violating VTL Section 1225-d as charged in Simplified Traffic Information # BD2103522. As a result the ticket is hereby DISMISSED.

SO ORDERED

June 14, 2012

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Gary C. Granoff, Village Justice