by James Ostrowski
by James Ostrowski

Note: This is an actual legal brief I filed in a New York court recently. While filing the brief in person, I struck up a conversation with the other two people in line at the clerk’s office. Both were also charged with using a cell phone while driving. Apparently, this law is just another New York State tax increase masquerading as a public safety measure. I previously addressed the political aspects of the cell phone law.

Every year, our government in Albany, affectionately known as "three men in a room," reliably enacts new laws that erode the personal freedom of New Yorkers who themselves have no real voice in such legislative decisions.

Logically, if this trend continues, we will, in the not too distant future, have little if any personal freedom left. Surely, the courts have a role to play in ensuring that this endless stream of meddlesome legislation passes muster under the State and Federal Constitutions. The legislature is not free to violate the constitution. The State may not exercise its police power in a manner inconsistent with the Constitution or any general law of the State. See, People v. Delprete, 83 N.Y.2d 814, 633 N.E.2d 1092, 611 N.Y.S.2d 488 (1994)).

Sadly, our courts have yet to seriously grapple with the constitutionality of the new law banning holding a cell phone while driving. (Perhaps when the legislature bans holding a comb while driving, there will be more court challenges.) Only one case has dealt with the present issue. In People v. Neville. 190 Misc2d 432 (Justice Ct. Nassau Co. 2002), the court rejected arguments that the cell phone law was vague or overbroad or a violation of the right to privacy or equal protection. No appellate court has passed on these issues.

We contend that this law goes beyond the "police power" of the State, and violates the state and federal equal protection clauses and the state and federal rights to substantive due process or privacy. NY State Constitution, Article 1, Sections 6, 11 and 12; US Constitution, Fourth, Fifth, Ninth and Fourteenth Amendments.

Any constitutional analysis should start with a true understanding of what this law prohibits. It does not prohibit using a cell phone, talking on a cell phone, or "holding a mobile telephone to activate, deactivate or initiate a function of such telephone." VTL Section 1225-c(f).

Rather, this confusing statute forbids "engaging in a call" with a "hand-held mobile phone." Subdivision 2(a). There is a rebuttable presumption that holding the phone in the "immediate proximity" of the ear constitutes "engaging in a call." Subdivision 2(b). Thus, the statute, in essence, forbids, not the making of a call, but doing so by holding a phone to one's ear. Oddly enough, holding a phone to one's ear without making a call is perfectly lawful. [One study concluded that even hands-free calling distracts drivers' attention from the road. D. L. Strayer, et al., "Cell Phone-Induced Failures of Visual Attention During Simulated Driving." 9 Journal of Experimental Psychology: Applied 23 (2003).]

So the statute makes it unlawful to hold a cell phone to one's ear when engaging in a call but does not prohibit engaging in a call without holding a phone to one's ear. That's all it says and that is quite absurd. Thus, those who do so are subject to being stopped, searched, charged, and punished. However, other persons who engage in a virtually infinite list of comparable behaviors are not punished: combing one's hair, using a Q-Tip, putting a hat on, drinking hot coffee, playing the harmonica, using an electric razor, or petting the cat sitting on your shoulder. I could go on and on and so could the legislature, which makes the point that there is literally no end to this kind of nonsense. It's a creeping totalitarianism that the courts should stop before we end up like the fellow in the film 1984 who had to suffer some churlish bureaucrat in a two-way TV barking orders at him to exercise.

Surely those who would defend this law will cite to some vague language about the State's right to use its police powers to protect the heath and welfare of its citizens. See, however, People v. Delprete, supra. Those who so argue are unlikely to confront the hard question of where the police power ends. Why, for example, couldn't the State install two-way television into our homes and bark orders at us to exercise? This argument is particularly poignant in this area [Buffalo] which has a high rate of heart disease and whose governments are collapsing under the weight of Medicaid costs from this disease. Or, since lack of sleep is a major cause of motor vehicle accidents, why can't the State install two-way radios in our cars and demand we disclose how many hours we slept last night before starting our cars in the morning? Yet, we have to say, in answer to those who would advocate such totalitarian methods: it's none of the State's business. Similarly, we ask this Court to hold that when a citizen is holding an object in the immediate proximity of her head, and harming no one, it's none of the State's business!

Some would argue that statistical studies suggest that cell phone use is correlated to increased accidents. Frankly, as the author of a number of studies on public policy, including four published by New York State bar associations, I believe all such studies are flawed. For example, I am sure none takes account of the increase in accidents that are caused by people slowing down and changing lanes to stop the car to make a call, or by speeding up and changing lanes to get back into traffic after stopping to make a call. Because of the complexities of a true analysis of the impact of cell phone use, and because we cannot do realistic controlled studies of such things, we will probably never know whether cell phone use increases accidents or reduces them. We do know that fatalities from accidents generally declined nationally from 1995 through 2002 (source: U. S. Bureau of Transportation Statistics), a period in which cell phone use was increasing dramatically.

Here are some other facts we know. First, it is significant that in most cases, the driver charged is not driving unsafely. If he was, there would be no need for the present law. Rather, he or she could be charged with violating one of the rules of the road. Thus, the defendant here was, without question, not violating any rules of the road. She was driving safely!

Second, the police officer in question must have been diverting her own attention from unsafe drivers and onto the private, harmless behavior of citizens such as the defendant. This very diversion of the officer's attention from unsafe drivers – who are on every street so far as I can see – to safe drivers, is, in itself, dangerous! Unless we repeal the laws of logic, it must be the case that the diversion of attention from rules-of-the-road violators to cell phone users will lead to fewer bad drivers being punished and thus more accidents!

Third, pulling drivers over will definitely increase accidents, including, ultimately, fatal accidents. An incredible 31,000 tickets were issued under this law between December 1, 2001 and May 31, 2002. That means an extra 31,000 chances for an unnecessary accident to occur. Accidents can occur as follows:

1. while a police vehicle is winding through traffic to make a stop;
2. while other drivers are pulling over to avoid an emergency vehicle;
3. while the target driver is pulling off the road;
4. when the police officer leaves his or her vehicle;
5. while the police officer gets back onto the road;
6. while the target driver gets back onto the road; and,
7. rubbernecking, a major cause of accidents, can also occur.

Finally, during the ten or so minutes that an officer is deployed issuing a ticket, he is obviously not available to apprehend truly bad drivers.

Thus, this is a law that forbids innocuous behavior that millions of people in this country engage in every day without incident, but leads to enforcement efforts that in and of themselves cause accidents!

However, for the sake of argument, let's accept the premise that there is some statistical correlation between cell phone use and accidents. Does the State have the right to ban or regulate any phenomena that correlate to increased accidents? I came across one study that indicated that American Indians get into more accidents. Can the State ban them from driving? A myriad of causes of accidents have been identified. Is the State empowered to reach into our lives to stamp out all such causes? Can anyone deny that a car filled with young people is probably more likely to be involved in accidents? I suppose then that the State can regulate or ban such socializing. Can the State ban animals in vehicles?

The point is clear: there is no rational stopping point to such burlesque extensions of the police power argument once the initial premises are accepted.

Rather, courts should be skeptical of such arguments when they lead to interference with the ordinary behavior of citizens going about their business and harming no one. There is no better time than the present, and no better case than this one to put a halt to such legislative tyranny. "If not now, when?"

To sum up, we contend that this statute violates the state and federal equal protection clauses because it punishes certain behavior while not punishing a myriad of functionally-equivalent behaviors; and it violates substantive due process because it is not a valid exercise of the State's police power and is not rationally related to a legitimate governmental purpose.

Wherefore, your affirmant respectfully prays on behalf of this defendant that all the relief requested in this motion be granted.

Dated: Buffalo, New York
December 14, 2004 /s/ James Ostrowski

James Ostrowski is an attorney in Buffalo, New York and author of Political Class Dismissed: Essays Against Politics, Including "What’s Wrong With Buffalo." See his website at http://jimostrowski.com.

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