Results 1 to 5 of 5
  1. #1
    Join Date
    Apr 2015
    Posts
    2

    Default Ticket for Briefly Holding Cell Phone While Driving

    My question involves a traffic ticket from the state of: New Jersey

    My wife's cell phone alarm went off while she was driving. She picked up the phone, turned off the alarm, then put the phone back down. The phone was in her hand for at most 15 seconds. A policeman was driving behind her and pulled her over. He said, "I pulled you over because you had the electronic device in your hand, and this is a hands free state." He then wrote her a ticket for "Cell Phone" under the Other Traffic / Parking Offense section, and told her that she'll have to appear in court.

    I found this NJ regulation 39:4-97.3 that seems to be pertinent. It states "Hands-free wireless telephone" means 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 conversation without the use of either hand; provided, however, this definition shall not preclude the use of either hand to activate, deactivate, or initiate a function of the telephone. It also says the fine is $200-400.

    This seems to allow the driver to use one hand to activate, deactivate, or initiate a function of the phone while driving, which is exactly what my wife did. This interpretation is supported by the Superior Court of NJ case State of New Jersey v. Elliott Malone. Per the press release of former Governor McGreevey, the purpose of this regulation is to "minimize distractions while driving", and she was doing just that.

    I would hope that the judge would dismiss this based on the above, as we'd really like to avoid paying $200-400, but who knows? Am I correct in my interpretation? Is there anything we should do to increase our chances of having this dismissed?

  2. #2
    Join Date
    May 2013
    Posts
    1,055

    Default Re: Ticket for Briefly Holding Cell Phone While Driving

    The statute you quoted does not prohibit what your wife did, assuming she was deactivating the alarm. If the officer testifies she was holding the phone near her ear, the judge will likely find her guilty. Assuming there is a chance to question the officer in court, I'd try to get him to re-state his comment about "hands-free state" and "you can't have the device in your hand." This second comment clearly runs afoul of the law, both in your wife's case and when the device is used to report an emergency, etc. If the officer believes the device can't he "held in your hand" then he doesn't understand the law.

  3. #3
    Join Date
    Apr 2015
    Posts
    2

    Default Re: Ticket for Briefly Holding Cell Phone While Driving

    Alright, thanks. That was my understanding as well.

    My wife has bluetooth built into her car, so she would have no reason to ever bring the phone up to her ear. He may have thought she was talking on speaker-phone or texting, but he never asked what she was doing with the phone, no "do you know why I pulled you over?", no conversation at all. He asked her for her license and registration, took them back to his car, and then came back and said, "I pulled you over because you had the electronic device in your hand, and this is a hands free state," and wrote her a ticket. When she said that she wasn't texting or talking on the phone, he told her to take it up in court. It's very much a guilty until proven innocent scenario.

    How would she go about getting the officer to re-state his comment in court? I've never been to traffic court, and so have no idea how the whole thing works.

  4. #4
    Join Date
    Mar 2013
    Posts
    18,340

    Default Re: Ticket for Briefly Holding Cell Phone While Driving

    She can see about getting his notes or the recording as part of the discovery process.

    Otherwise, she can just ask him what he said to her.

  5. #5
    Join Date
    May 2013
    Posts
    1,055

    Default Re: Ticket for Briefly Holding Cell Phone While Driving

    Dunno about your state but here in California, the officer appears as a witness. He will testify about what he saw or heard and then you can ask questions. That's called cross-examination. You can ask "At the traffic stop, did you say, 'this is a hands free state?' Can you explain what you mean by that? Does that mean that any driver who touches a phone is violating state law?" etc. etc. Would using a phone "on speaker" be a violation. He'll probably say yes and the statute says no.

    1. Sponsored Links
       

Similar Threads

  1. Other Violations: Cell Phone While Driving Ticket - How to Fight It
    By techsol in forum Moving Violations, Parking and Traffic Tickets
    Replies: 6
    Last Post: 09-27-2014, 07:02 PM
  2. Speeding Tickets: Speeding Ticket for Simply Holding a Cell Phone in Los Angeles
    By NoHo1 in forum Moving Violations, Parking and Traffic Tickets
    Replies: 13
    Last Post: 09-14-2014, 08:46 PM
  3. Other Violations: Holding a Cell Phone While Driving
    By borntodeal in forum Moving Violations, Parking and Traffic Tickets
    Replies: 13
    Last Post: 03-21-2012, 10:53 AM
  4. Reckless Driving: Ticket For Looking at Cell Phone While Driving
    By LaxTom in forum Moving Violations, Parking and Traffic Tickets
    Replies: 3
    Last Post: 03-05-2012, 02:47 PM
  5. Other Violations: Unfair Ticket for Use of a Cell Phone While Driving
    By 6336 in forum Moving Violations, Parking and Traffic Tickets
    Replies: 1
    Last Post: 09-14-2009, 03:35 PM
 
 
Sponsored Links

Legal Help, Information and Resources