Activating “Siri” Feature Did Not Amount to Using Phone to “Engage in a Call” Within the Meaning of New York’s Cell Phone Driving Statute

What does it mean to “engage in a call” for purposes of New York’s general cell phone driving statute, VTL § 1225-c(2)(a)?

That section provides:  ”[N]o person shall operate a motor vehicle upon a public highway while using a mobile telephone to engage in a call while such vehicle is in motion.”

Specifically, does using an iPhone’s “Siri” feature to “activate” a call amount to “engaging in a call”?  A Town Court in the Town of Brighton, Monroe County found that using “Siri” (in this case) amounted to “activating”, and not “engaging in”, a call, and found defendant not guilty.

The decision is People v. Andrew Welch, NYLJ 1202591122251, decided March 5, 2013.

There, an officer testified that he observed the defendant behind the wheel of a 2010 Audi that drove past the officer. The officer testified that the defendant “had a cell phone in his hand which he held close to his chin, and was talking into it.”

Defendant “took the stand, admitted that he had the cell phone in his hand and was talking into it, but asserted he was using the phone’s siri feature to activate a call.”

The court described Siri as “an electronic, voice-activated ‘personal assistant,’ incorporated into many Apple products including the iPhone” which, through voice commands, “enables the user to place phone calls, send messages, and more.”

The court held that the defendant was not “engaging in a call”:

Per the terms of the statute, it is illegal to engage in a call while operating a vehicle. “Engaging in a call” is defined as “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.” V&TL Section 1225-c(2)(a).

The statute contains a presumption that, “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.” V&TL Section 1225-c(2)(b). The section further provides, “The presumption established by this subdivision is rebuttable by evidence tending to show that the operator was not engaged in a call.”

The defendant’s testimony, if believed, rebuts the inference that he was engaged in a call and instead establishes that he was activating a call, an action that is not illegal. Having listened to defendant on the witness stand, I find that he was credible. The People did not rebut defendant’s testimony.

It therefore found the defendant not guilty.

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