Use of mobile telephones

§ 1225-c. Use of mobile telephones. 1. For purposes of this section,
the following terms shall mean:

(a) "Mobile telephone" shall mean the device used by subscribers and
other users of wireless telephone service to access such service.

(b) "Wireless telephone service" shall mean two-way real time voice
telecommunications service that is interconnected to a public switched
telephone network and is provided by a commercial mobile radio service,
as such term is defined by 47 C.F.R. § 20.3.

(c) "Using" shall mean (i) holding a mobile telephone to, or in the
immediate proximity of, the user's ear; and (ii) with respect to a
person operating a commercial motor vehicle, holding a mobile telephone
to, or in the immediate proximity of, the user's ear, or dialing or
answering a mobile telephone by pressing more than a single button, or
reaching for a mobile telephone in a manner that requires such person to
maneuver so that he or she is no longer in a seated driving position,
restrained by a seat belt that is installed in accordance with section
393.93 of title 49 of the code of federal regulations and adjusted in
accordance with the vehicle manufacturer's instructions.

(d) "Hand-held mobile telephone" shall mean a mobile telephone with
which a user engages in a call using at least one hand.

(e) "Hands-free mobile telephone" shall mean a mobile telephone that
has an internal feature or function, or that is equipped with an
attachment or addition, whether or not permanently part of such mobile
telephone, by which a user engages in a call without the use of either
hand, whether or not the use of either hand is necessary to activate,
deactivate or initiate a function of such telephone. Provided, however,
that for purposes of this section, a mobile telephone used by a person
operating a commercial motor vehicle shall not be deemed a "hands-free
mobile telephone" when such person dials or answers such mobile
telephone by pressing more than a single button.

(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.

(g) "Immediate proximity" shall mean that distance as permits the
operator of a mobile telephone to hear telecommunications transmitted
over such mobile telephone, but shall not require physical contact with
such operator's ear.

(h) "Commercial motor vehicle" shall have the same meaning as such
term is defined by subdivision four-a of section two of the
transportation law.

(i) "Motor carrier" shall have the same meaning as such term is
defined by subdivision seventeen of section two of the transportation
law.

2. (a) Except as otherwise provided in this section, no person shall
operate a motor vehicle upon a public highway while using a mobile
telephone to engage in a call while such vehicle is in motion; provided,
however, that no person shall operate a commercial motor vehicle while
using a mobile telephone to engage in a call on a public highway
including while temporarily stationary because of traffic, a traffic
control device, or other momentary delays. Provided further, however,
that a person shall not be deemed to be operating a commercial motor
vehicle while using a mobile telephone to engage in a call on a public
highway when such vehicle is stopped at the side of, or off, a public
highway in a location where such vehicle is not otherwise prohibited
from stopping by law, rule, regulation or any lawful order or direction
of a police officer.

(b) An operator of any motor vehicle who holds a mobile telephone to,
or in the immediate proximity of, his or her ear while such vehicle is
in motion is presumed to be engaging in a call within the meaning of
this section; provided, however, that an operator of a commercial motor
vehicle who holds a mobile telephone to, or in the immediate proximity
of, his or her ear while such vehicle is temporarily stationary because
of traffic, a traffic control device, or other momentary delays is also
presumed to be engaging in a call within the meaning of this section
except that a person operating a commercial motor vehicle while using a
mobile telephone to engage in a call when such vehicle is stopped at the
side of, or off, a public highway in a location where such vehicle is
not otherwise prohibited from stopping by law, rule, regulation or any
lawful order or direction of a police officer shall not be presumed to
be engaging in a call within the meaning of this section. The
presumption established by this subdivision is rebuttable by evidence
tending to show that the operator was not engaged in a call.

(c) The provisions of this section shall not be construed as
authorizing the seizure or forfeiture of a mobile telephone, unless
otherwise provided by law.

(d) No motor carrier shall allow or require its drivers to use a
hand-held mobile telephone while operating a commercial motor vehicle as
provided in this section.

3. Subdivision two of this section shall not apply to (a) the use of a
mobile telephone for the sole purpose of communicating with any of the
following regarding an emergency situation: an emergency response
operator; a hospital, physician's office or health clinic; an ambulance
company or corps; a fire department, district or company; or a police
department, (b) any of the following persons while in the performance of
their official duties: a police officer or peace officer; a member of a
fire department, district or company; or the operator of an authorized
emergency vehicle as defined in section one hundred one of this chapter,
or (c) the use of a hands-free mobile telephone.

4. A violation of subdivision two of this section shall be a traffic
infraction and shall be punishable by a fine of not less than fifty
dollars nor more than two hundred dollars upon conviction of a first
violation; upon conviction of a second violation, both of which were
committed within a period of eighteen months, such violation shall be
punished by a fine of not less than fifty dollars nor more than two
hundred fifty dollars; upon conviction of a third or subsequent
violation, all of which were committed within a period of eighteen
months, such violation shall be punished by a fine of not less than
fifty dollars nor more than four hundred fifty dollars.