If you received a ticket for improper use of a cell phone while driving in violation of N.J.S.A. 39:4-97.3, you should know that there are several defenses available to that charge. Pursuant to the cell phone statute, the use of a cell phone by an operator of a motor vehicle shall be unlawful “except where the telephone is a hands-free wireless telephone or the electronic communication device is used hands-free.” The statute defines “use” to “include, but not be limited to, talking or listening to another person, text messaging, or sending an electronic message . . .” Perhaps most importantly, the statute expressly permits “the use of either hand to activate, deactivate, or initiate a function of the telephone.”
In State v. Malone, 2011 WL 2582730 (App. Div. 2011), a police officer observed the defendant holding a cell phone in his hand and “pushing buttons.” Believing such conduct to be a violation of New Jersey’s cell phone law, the officer pulled the defendant over and issued a ticket for improper use of a cell phone while driving. The defendant argued that even if he had been pressing buttons, as the officer alleged, such conduct would not violate the cell phone statute, because the statute permits a driver to hold a cell phone in one hand to “activate, deactivate, or initiate a function” of the telephone. The defendant further argued that dialing a number is implicitly permitted to activate, deactivate, or initiate a function of the phone.
The Appellate Division, reading the statute as a whole, concluded that a motorist can use one hand to activate, deactivate, or initiate a function of the telephone, but once engaged in the conversation, the use of the telephone must be “without the use of either hand.” The court thus rejected the State’s contention that a motorist is not permitted to hold a wireless telephone at any time while driving. The court further agreed with the defendant that a motorist is permitted to dial numbers to initiate a call, noting that while the statute was designed to minimize distractions, it was not designed to completely eliminate them. The court thus concluded as follows:
[A] motorist may only engage in a conversation on a cell phone if the telephone is equipped with a hands free device; the motorist may not hold the telephone in one hand while talking to, or listening to, the other person on the end of the phone. A motorist is also prohibited from holding the telephone to send a text message or electronic mail. The only circumstances in which a motorist is permitted to hold a wireless cell phone in one hand, with the other hand on the steering wheel, is when the motorist is activating, deactivating or initiating a function of the telephone, which includes answering the phone, ending the phone call, or dialing a phone number.
The court therefore reversed the defendant’s conviction under the statute, finding that the state had failed to prove beyond a reasonable doubt that by pressing buttons, the defendant was using his phone was an unlawful purpose.
As can be seen from the court’s holding, there are, in fact, many defenses that are available to a cell phone ticket in New Jersey and the pressing of buttons, in and of itself, is not prohibited. There are also, however, many questions left unresolved. For example, would using your cell phone as an Ipod or would using the GPS function of your cell phone violate the statute constitute a “use” under the statute? Even if these activities would constitute a “use” pursuant to the statute, then perhaps it could be argued that the pushing of buttons to activate, deactivate, to initiate one of these functions is likewise not prohibited conduct. Additionally, even if your cell phone is not equipped with a hands-free device, perhaps it could be argued that, if you were using the speaker phone function of your phone to talk or listen, the cell phone was properly being “used hands-free.”
The statute also contains an “emergency exception.” This exception permits a driver to hold a cell phone in one hand to make a call whenever the motorist believes their life or safety, or that of another, is in danger; or the motorist us using the phone to report a fire, traffic accident, a serious road hazard or medical or hazardous materials emergency or to report another driver operating unsafely or who appears to be intoxicated.
If you have been charged with improper use of a cell phone, it is imperative that you keep evidence from your cell phone or from your billing statement to prove that you were not engaged in any of the prohibited activities at the time of the stop. Contact theWolf Law today to discuss the potential defenses that exist in your case. Our attorneys will work to get your ticket downgraded or dismissed altogether.