CELL PHONE/TEXTING

The importance of texting while driving should be addressed to anyone obtaining a valid driver’s license and can operate a vehicle. It is comparable to, if not worse than, driving under the influence. drivers who are texting while driving are 23% more likely to crash their cars. This percentage is equivalent to that of the average person who has drunk four beers and then began to operate a vehicle! Regardless of how great or experienced a driver you think you are; you are almost guaranteed to get into an accident if you are driving without actually looking at the road.
Under New York State law you cannot use a hand-held mobile telephone or portable electronic device while you drive. Illegal activity includes holding a portable electronic device and
• talking on a handheld mobile telephone
• composing, sending, reading, accessing, browsing, transmitting, saving, or retrieving electronic data such as e-mail, text messages, or webpages
• viewing, taking, or transmitting images
• playing games
If you use a portable electronic device while you drive (except to call 911 or to contact medical, fire or police personnel about an emergency), you can receive a traffic ticket and be subject to a fine and a surcharge.
Conviction of a cell phone use, portable electronic device use or a texting violation will also result in points being added to your DMV driving record. New York state distracted driving fines: First offense: $50 to $200. Second offense (within 18 months): $50 to $250. Third offense (within 18 months): $50 to $450. You receive five demerit points for all violations (effective 2015) If you receive 11 points in an 18 month period, your driver license may be suspended.
Mr. Fluery most often settles the five point charge to two or three points and a reduced charge. Like speeding, a texting charge on your record does not bode well with the DMV and should be avoided.
“The way the statute is written, it’s very difficult to prove beyond a reasonable doubt in court,” Mr. Fluery says. “In order to show you were using your phone to text or emailing, they would have to have a search warrant.”
If an officer asks to see the phone, the driver does not have to hand it over.
“You can decline,” Mr. Fluery says..
Unlike the objective blood alcohol content (BAC) test used in DUI cases, much of the evidence used to prosecute distracted drivers — such as officer or witness testimony — is subjective. A defense attorney can challenge the credibility of witness testimony as it may be influenced by bias, poor eyesight or memory, as well as other factors.
Other examples of a possible defense are:
Lack of Probable Cause. A police officer needs probable cause (a reasonable belief that a crime has been or is about to be committed) to stop, detain or arrest you. If a distracted driving law has primary enforcement, the police can stop you if they see you talking on a phone. Since distracted driver laws are largely traffic citations, the rules are less clear regarding searches. In all circumstances, your attorney will examine the justification for the stop. Without probable cause, the evidence may be disallowed and your case may be dismissed.
Miranda Violation. If you are placed under arrest, you must be read your Miranda rights, which are rights that protect you from self-incrimination. For example, you have the right to have an attorney present during questioning. If the police interrogate you without your attorney, any statements you made may not be used against you.
Other Cause of Accident. If you were involved in an accident and you were in fact driving while “intexticated,” it is still possible you did not cause the accident. The presence of other factors could get a felony charge reduced to a misdemeanor or, in some situations, the charges dropped altogether. In a civil case, any fault attributable to the plaintiff can reduce or eliminate a judgment for personal injury and/or wrongful death damages. An experienced attorney will conduct a thorough investigation of the accident to look for factors that will aid your defense.
Identity Questions. In DWI/DUI cases, if there is insufficient evidence that you were driving the car, your attorney may raise this defense. Similarly, in a distracted driving case, if there is insufficient evidence that you were driving or that you were the person talking or texting, you may have a valid defense. While phone company records can establish the time and date of a call or text, they cannot tell you who operated the device. Other passengers in the vehicle may have been using the handheld device and can testify on your behalf.
Driving while distracted can have very serious consequences. However, the law is evolving and the charges can be difficult to prove. Even if you were driving distracted, an accident may not have been your fault. It is very important to have an experienced attorney evaluate your case and any defenses that can help reduce or dismiss the charges.