"Texting" Tickets Issued to People Not Texting

"Texting" Tickets Issued to People Not Texting

People are finding out the hard way, just holding a mobile device while driving can land them in hot water.
Jake Zane was pulled over on Empire Blvd. last fall. He said he hadn't been texting. He thinks maybe he checked the time on his phone. He planned to fight the ticket in court.

"I'm going to show my phone records. I have a clean driving record. I think that should be enough, that maybe that they'll throw it out," Zane said, adding he's opposed to texting while driving, understanding it's dangerous. "I never thought I would be a person to get a texting ticket."

Dan Hite was pulled over in late 2012 while driving through the Can of Worms. The state trooper accused him of texting while driving. Hite said he was turning up the volume on his GPS, which was talking in the seat next to him during the traffic stop.

"I said I wasn't texting," Hite said. "He said, 'I saw you texting.'"

The only evidence against drivers ticketed for texting while driving is the law enforcement officer's visual observations.

 "I think we could drive down 490 right now and we could see people in probably a pretty short period of time," said Trooper Mark O'Donnell. "Certainly just observe them, just observe them texting, whether it's day or night."

"The proof is usually visual from the officer," said defense attorney Todd Wisner. "There isn't a radar device. There usually isn't a video camera."

More people are getting ticketed. In Monroe County in 2011, only 292 people got tickets under the state's portable electronic device law, also known as the anti-texting law. In 2012, 1,124 people were ticketed. Last year, 1,987 were nabbed.

"We can't impress upon the public enough that driving while distracted is a dangerous situation and it needs to be avoided at all costs," said Monroe County District Attorney Sandra Doorley. 

Doorley will not plead down any texting while driving cases.

"We do not plea bargain them at all. If you have one of these tickets, chances are you probably should just plead guilty and move on because we're not going to give you a reduction, not at this point," Doorley said.

"It's your word against the officer," said Wisner. "It is hard. They're tough cases to win."

Convictions carry five points on a driver's license. That's why some people are willing to pay several hundred dollars to a lawyer to fight their tickets in court. Some people could lose their licenses if they have too many points, which could affect their employment.

"It's not the fines. It's the points," Wisner said.

More people are getting convicted under the anti-texting law.

In 2011, 45 percent of people ticketed in Monroe County were convicted. In 2012, 57 percent of people were convicted. Last year, 61 percent of people were convicted. The statewide average in 2013 was 45 percent.

Some judges find defendants not guilty or find them guilty of lesser charges. 

Hite had no such luck in city traffic court. The trooper who pulled him over testified against him. Hite admitted to holding his GPS and turning up the volume. That was enough for a conviction under the law, which says GPS devices must be mounted.

"As long as you've got a mobile device in your hand, you get a ticket and that's what he wrote mine for," Hite said. He had to pay a $100 fine. "I admitted what I had done. I was holding it, but holding it is a violation."

Zane was found guilty in Penfield Court and had to pay a $150 fine. He went from zero to five points on his license. Zane showed the judge his phone records, indicating he didn't send or receive a text. But under the law, you can't read anything on your phone while driving.

"It's not just texting and driving. It's anything. It's your GPS, it's your iPod and they're going to believe the officer," Zane said. "So do whatever you can do to not put yourself in a situation, where you'll end up like me."

Doorley said her office plans to launch a three-hour, $50 class in March for people convicted of texting while driving. They could get points off their license if they successfully complete the class. Doorley hasn't decided how many points the class would be worth.

Zane joked that one day drinking coffee while driving could be illegal.

"I don't think we should repeal the law, but I think we should look at how it's applied," he said.

To read more about the electronic portable device law, click here.
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