Assembly Bill A1028

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

    S. 389--A                                             A. 1028--A

                       2009-2010 Regular Sessions

                      S E N A T E - A S S E M B L Y

                               (PREFILED)

                             January 7, 2009
                               ___________

IN SENATE -- Introduced by Sens. BRESLIN, ADAMS, DUANE, KRUEGER, KRUGER,
  MONTGOMERY,  ONORATO,  SAMPSON, STACHOWSKI, STAVISKY -- read twice and
  ordered printed, and when printed to be committed to the Committee  on
  Transportation   --   committee   discharged,  bill  amended,  ordered
  reprinted as amended and recommitted to said committee

IN ASSEMBLY -- Introduced by M. of A. CANESTRARI, ALESSI  --  read  once
  and   referred   to  the  Committee  on  Transportation  --  committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee

AN ACT to amend the vehicle and traffic law, in relation to use of hand-
  held communication devices while operating a motor vehicle

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1. Section 1225-c of the vehicle and traffic law, as added by
chapter 69 of the laws of 2001, is amended to read as follows:
  S 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.
  (A-1) "HAND-HELD COMMUNICATION DEVICE" SHALL MEAN THE DEVICE  USED  BY
SUBSCRIBERS  THAT  PROVIDES  WIRELESS E-MAILS, PUSH E-MAIL, MOBILE TELE-
PHONE SERVICE, TEXT MESSAGING, INTERNET FAXING, WEB BROWSING  AND  OTHER
WIRELESS  FUNCTIONS.  THIS  TERM  SHALL  ALSO MEAN AND INCLUDE A TWO-WAY
RADIO DEVICE THAT PROVIDES RADIO COMMUNICATION BETWEEN MOBILE  AND  LAND
STATIONS OR BETWEEN MOBILE STATIONS.
  (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. S 20.3.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD03416-02-9

S. 389--A                           2                         A. 1028--A

  (c) "Using" shall mean holding a mobile telephone OR HAND-HELD  COMMU-
NICATION  DEVICE to, or in the immediate proximity of, the user's ear OR
PERFORMING TEXT MESSAGING, INTERNET FAXING, WEB BROWSING OR OTHER  WIRE-
LESS  COMMUNICATION  FUNCTIONS  WHILE  OPERATING  A MOTOR VEHICLE UPON A
PUBLIC HIGHWAY.
  (d)  "Hand-held  mobile telephone" OR "HAND-HELD COMMUNICATION DEVICE"
shall mean a mobile telephone OR  HAND-HELD  COMMUNICATION  DEVICE  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 attach-
ment or addition, whether or not permanently part of such  mobile  tele-
phone, 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, deacti-
vate or initiate a function of such telephone.
  (f) "Engage in a call" shall mean talking into or listening on a hand-
held mobile telephone OR HAND-HELD COMMUNICATION DEVICE, but  shall  not
include  holding a mobile telephone OR HAND-HELD COMMUNICATION DEVICE 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 OR HAND-HELD COMMUNICATION DEVICE to hear
telecommunications  transmitted  over such mobile telephone OR HAND-HELD
COMMUNICATION DEVICE, but shall not require physical contact  with  such
operator's ear.
  2.  (a)  Except as otherwise provided in this section, no person shall
operate a motor vehicle upon a public highway while using a mobile tele-
phone OR HAND-HELD COMMUNICATION DEVICE to engage in a call  while  such
vehicle is in motion.
  (b) An operator of a 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.  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 authoriz-
ing the seizure or forfeiture of a mobile  telephone,  unless  otherwise
provided by law.
  3. Subdivision two of this section shall not apply to (a) the use of a
mobile  telephone OR HAND-HELD COMMUNICATION DEVICE for the sole purpose
of communicating with any of the following regarding an emergency  situ-
ation: 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, OR (D) THE USE OF A MOBILE TELEPHONE OR HAND-HELD
COMMUNICATION  DEVICE  IN  CONNECTION  WITH  THE  BUSINESS  OF  LICENSED
FOR-HIRE VEHICLES.
  4.  A  violation of subdivision two of this section shall be a traffic
infraction and shall be punishable by  a  fine  of  not  more  than  one
hundred dollars.
  S  2.  This  act shall take effect on the ninetieth day after it shall
have become a law.