New York actually has two separate laws governing phone use behind the wheel, and the line between them is easy to miss. Getting the distinction right matters, because it can be the difference between a ticket that's legally sound and one that isn't.
Two Different Laws, Two Different Things
Vehicle and Traffic Law § 1225-c prohibits using a mobile telephone to engage in a call while driving. Vehicle and Traffic Law § 1225-d prohibits using a portable electronic device — texting, browsing, viewing images, playing games — while driving. They sound similar, but they're not interchangeable.
Case on point: The court held that VTL § 1225-c addresses a driver using a cell phone to engage in a phone call, while VTL § 1225-d addresses broader electronic device use but makes no reference to phone calls at all. Where a defendant is alleged to have been speaking on a cell phone while driving, the proper charge is under § 1225-c, not § 1225-d.
That distinction isn't just academic. In Scanlon's case, the ticket had been issued under the wrong statute — and that discrepancy was enough to matter to the outcome.
The Mobile Telephone Law: What Counts as "Using"
Under § 1225-c, "using" a mobile telephone means holding it to, or in the immediate proximity of, the user's ear. The statute carves out an exception for hands-free devices — those that let a driver engage in a call without using either hand — and courts have held that merely holding a phone to activate a hands-free function isn't a violation.
The statute also builds in an evidentiary shortcut for the prosecution: an operator who holds a mobile telephone to, or in the immediate proximity of, their ear while the vehicle is in motion is presumed to be engaging in a call. That presumption is rebuttable by evidence tending to show the driver wasn't actually engaged in a call.
The court reversed a conviction where the defendant's own statement — that she was attaching a hands-free earpiece to her ear when observed — described conduct the statute doesn't prohibit. Holding a phone to activate, deactivate, or initiate a function is expressly excluded from "engaging in a call" under the statute.
The Presumption Can Be Rebutted — But It's Not Easy
Case on point:
The court found the defendant not guilty of the cell phone charge where she testified, without compelling rebuttal from the prosecution, that her attempted call never connected and that she had been attempting it while stopped at a red light, not while driving.
The Appellate Term found a conviction against the weight of the evidence where the defendant testified he had not been engaged in a call at the specific time the officer observed him, and supported that testimony with a portion of his phone bill confirming no call had occurred.
Key takeaway: Rebutting the presumption isn't just about telling your side of the story — it takes specific, corroborating evidence tied to the exact date, time, and phone in question. A bare denial the court doesn't find credible, or records that aren't properly connected to your device, won't likely be enough.