S T A T E O F N E W Y O R K
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2435
2017-2018 Regular Sessions
I N A S S E M B L Y
January 20, 2017
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Introduced by M. of A. DINOWITZ, GALEF, ORTIZ, QUART -- Multi-Sponsored
by -- M. of A. GOTTFRIED -- read once and referred to the Committee
on Transportation
AN ACT to amend the vehicle and traffic law, in relation to prohibiting
the use of a portable electronic device while operating a bicycle and
to prohibit local governments from regulating the use of portable
electronic devices by bicycle operators; and providing for the repeal
of certain provisions upon expiration thereof
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The vehicle and traffic law is amended by adding a new
section 1238-a to read as follows:
§ 1238-A. USE OF PORTABLE ELECTRONIC DEVICES; PROHIBITED. 1. FOR THE
PURPOSES OF THIS SECTION, THE FOLLOWING TERMS SHALL MEAN:
(A) "PORTABLE ELECTRONIC DEVICE" SHALL MEAN ANY HAND-HELD MOBILE TELE-
PHONE, PERSONAL DIGITAL ASSISTANT (PDA), HANDHELD DEVICE WITH MOBILE
DATA ACCESS, LAPTOP COMPUTER, PAGER, BROADBAND PERSONAL COMMUNICATION
DEVICE, TWO-WAY MESSAGING DEVICE, ELECTRONIC GAME, OR PORTABLE COMPUTING
DEVICE, OR ANY OTHER ELECTRONIC DEVICE WHEN USED TO INPUT, WRITE, SEND,
RECEIVE, OR READ TEXT FOR PRESENT OR FUTURE COMMUNICATION.
(B) "USING" SHALL MEAN HOLDING A PORTABLE ELECTRONIC DEVICE TO, OR IN
THE IMMEDIATE PROXIMITY OF, THE USER'S EAR; OR THEIR HAND WHILE VIEWING,
TAKING OR TRANSMITTING IMAGES, PLAYING GAMES, OR, FOR THE PURPOSE OF
PRESENT OR FUTURE COMMUNICATION: PERFORMING A COMMAND OR REQUEST TO
ACCESS A WORLD WIDE WEB PAGE, COMPOSING, SENDING, READING, VIEWING,
ACCESSING, BROWSING, TRANSMITTING, SAVING OR RETRIEVING E-MAIL, TEXT
MESSAGES, INSTANT MESSAGES, TELEPHONE CALLS, OR OTHER ELECTRONIC DATA.
(C) "HAND-HELD MOBILE TELEPHONE" SHALL MEAN A MOBILE TELEPHONE WITH
WHICH A USER ENGAGES IN A CALL USING AT LEAST ONE HAND.
(D) "HANDS-FREE MOBILE TELEPHONE" SHALL MEAN A MOBILE TELEPHONE THAT
HAS AN INTERNAL FEATURE OR FUNCTION, OR THAT IS EQUIPPED WITH AN ATTACH-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03179-01-7
A. 2435 2
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.
(E) "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.
(F) "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.
2. (A) EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION, NO PERSON SHALL
OPERATE A BICYCLE UPON A PUBLIC HIGHWAY, BICYCLE LANE OR ROADWAY WHILE
USING A PORTABLE ELECTRONIC DEVICE TO ENGAGE IN A CALL WHILE SUCH BICY-
CLE IS IN MOTION.
(B) AN OPERATOR OF A BICYCLE WHO HOLDS A PORTABLE ELECTRONIC DEVICE
TO, OR IN THE IMMEDIATE PROXIMITY OF HIS OR HER EAR WHILE SUCH BICYCLE
IS IN MOTION IS PRESUMED TO BE ENGAGING IN A CALL WITHIN THE MEANING OF
THIS SECTION. THE PRESUMPTION ESTABLISHED BY THIS SUBDIVISION IS REBUTT-
ABLE 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 PORTABLE ELECTRONIC DEVICE, UNLESS
OTHERWISE PROVIDED BY LAW.
3. SUBDIVISION TWO OF THIS SECTION SHALL NOT APPLY TO (A) CITIES
HAVING A POPULATION OF MORE THAN ONE MILLION, (B) THE USE OF A PORTABLE
ELECTRONIC DEVICE FOR THE SOLE PURPOSE OF COMMUNICATING WITH ANY OF THE
FOLLOWING REGARDING AN EMERGENCY SITUATION: AN EMERGENCY RESPONSE OPERA-
TOR; A HOSPITAL, PHYSICIAN'S OFFICE OR HEALTH CLINIC; AN AMBULANCE
COMPANY OR CORPS; A FIRE DEPARTMENT, DISTRICT OR COMPANY; OR A POLICE
DEPARTMENT, (C) ANY OF THE FOLLOWING PERSONS WHILE IN THE PERFORMANCE OF
THEIR OFFICIAL DUTIES: OFFICERS OR EMPLOYEES OF ANY FEDERAL, STATE, OR
CITY LAW ENFORCEMENT AGENCY; 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, (D) THE USE OF A HANDS-FREE
MOBILE TELEPHONE OR A PORTABLE ELECTRONIC DEVICE IN A VOICE ACTIVATED
MODE, OR (E) THE USE OF A PORTABLE ELECTRONIC DEVICE WHILE REMAINING IN
A STATIONARY POSITION DURING SUCH USE.
4. IT SHALL BE A TRAFFIC INFRACTION TO VIOLATE THE PROVISIONS OF
SUBDIVISION TWO OF THIS SECTION PUNISHABLE BY A CIVIL PENALTY OF NOT
MORE THAN FIFTY DOLLARS. NOTWITHSTANDING THE FOREGOING, A PERSON SHALL
NOT BE LIABLE FOR A CIVIL PENALTY FOR A FIRST VIOLATION OF SUBDIVISION
TWO OF THIS SECTION UNLESS DAMAGE TO REAL PROPERTY OR THE PERSONAL PROP-
ERTY OF ANOTHER OR PERSONAL INJURY WAS CAUSED DUE TO AN INCIDENT INVOLV-
ING A BICYCLE OPERATED BY SUCH A PERSON AT THE TIME OF SUCH FIRST
VIOLATION. IN ADDITION, ANY PERSON WHO VIOLATES ANY PROVISION OF SUBDI-
VISION TWO OF THIS SECTION MORE THAN ONCE WITHIN ANY EIGHTEEN MONTH
PERIOD SHALL BE SUBJECT TO THE IMPOSITION OF AN ADDITIONAL CIVIL PENALTY
OF NOT LESS THAN FIFTY DOLLARS NOR MORE THAN TWO HUNDRED DOLLARS.
§ 2. Except as otherwise provided in section one of this act, no
municipal corporation, as defined in section 2 of the general municipal
law, shall, after June 1, 2017, enact any local law, ordinance or code
relating to the operation of a bicycle while using a portable electronic
device unless the terms of such law, ordinance or code are identical to
section 1238-a of the vehicle and traffic law, as added by section one
of this act. The provisions of this act shall invalidate and preempt any
A. 2435 3
such local law, ordinance or code, enacted after June 1, 2017 unless the
terms of such law, ordinance or code are identical to section 1238-a of
the vehicle and traffic law, as added by section one of this act.
§ 3. The provisions of this act shall preempt any local law, ordi-
nance, code, rule or regulation relating to the operation of a bicycle
while using a portable electronic device, except that nothing in this
act shall preclude any state or local agency, which, by permit, license
or registration regulates the business or professional activities of
individuals from imposing more stringent restrictions than provided in
this act for the use of portable electronic devices upon such individ-
uals during the course of engaging in the business or professional
activity that is the subject of such agency's permit, license or regis-
tration.
§ 4. For the purpose of informing and educating persons who operate
bicycles in this state, any law enforcement official authorized to issue
appearance tickets pursuant to the vehicle and traffic law may, during
the period commencing November 1, 2017 and ending November 30, 2017,
stop a bicyclist and issue verbal warnings to persons who would be in
violation of the provisions of section 1238-a of the vehicle and traffic
law, as added by section one of this act, were the provisions thereof
effective on the day such warning is issued.
§ 5. The court shall waive any fine for which a person who violates
the provisions of section 1238-a of the vehicle and traffic law, as
added by section one of this act, would be liable if such person
supplies the court with proof that, between the date on which he or she
is charged with having violated such section and the appearance date for
such violation, he or she possesses a hands-free mobile telephone as
defined in paragraph (d) of subdivision 1 of section 1238-a of the vehi-
cle and traffic law, as added by section one of this act; provided,
however, that such waiver of fine shall not apply to a second or subse-
quent violation under such section.
§ 6. This act shall take effect immediately, except that sections one,
three and five of this act shall take effect December 1, 2017; section
two shall expire and be deemed repealed December 1, 2017; section four
of this act shall take effect November 1, 2017 and shall expire and be
deemed repealed December 1, 2017; and section five of this act shall
expire and be deemed repealed March 1, 2018.