Tuesday, January 13, 2009

Using My Gemara Kop to Get Out of a Cell Phone Ticket


Ever since I read New York's anti-cell-phone-while-driving law, I had a hankering to get pulled over so that I could put my law-school-acquired statutory construction skills to good use. For good measure, I xeroxed a copy of the mobile phone statute and kept it with me in the car just in case.

My wish came true about a month ago. I was holding the phone in my hand. It was on the "speaker phone" setting and I was holding it an inch or two below my chin. I was pulled over by a nice Nassau County police officer. After surrendering my license and proof of insurance, he told me that he was going to give me a ticket for talking on the cell phone. I asking him if, since he'd already decided to give me the ticket anyway, I could explain to him why I thought I didn't violate the statute. Out of a sense of amusement, I think, he gave me the go-ahead.

So I whipped out the copy of the New York VTL (Vehicle and Traffic Law), § 1225-c that I had prepared for just such a moment and I showed him the pertinent parts of the statute that you can read here:

§ 1225-c. Use of mobile telephones.
1. For purposes of this section, the following terms shall mean:
...
(c) "Using" shall mean holding a mobile telephone to, or in the immediate proximity of, the user's ear.
...
(f) "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.
(g) "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 motor vehicle upon a public highway while using a mobile telephone to engage in a call while such vehicle is in motion...
At first, he argued, "Were you using a hands-free device or not?!" I retorted that the statute does not require someone to use a hands-free device. Rather, in order to violate 2(a), the actual prohibition in the statute, two elements must be present for the purposes of my case. You have to be (1) "using" a mobile phone and (2) "engag[ing] in a call." Subsection 1 of the statute defines "using" as "holding a mobile telephone to, or in the immediate proximity of, the user's ear." And it defines "engage" as "talking into or listening on a hand-held mobile telephone."

In my case, while the second element may have been present since I was talking to Dixie Dad on the phone, the first element was absent. The phone was not "to, or in the immediate proximity of, [my] ear." It was in the vicinity of my chin, but not my ear! One cannot violate a criminal statute unless all elements of the violation are present and since the first element was absent in my situation, I didn't violate the statute!

The officer responded that what I was saying wasn't true. It didn't mean that it had to be by my ear. It just meant that I was in violation merely by holding the phone. In the alternative, he argued that the phone's position below my chin should also be considered "in the vicinity of" my ear.

I responded that I didn't think that could be true. If the legislature wanted to prohibit all calls where the cell phone is in one's hand, it could have left out the definition of "using" in subsection 1, thus leaving only the definition of "engage in a call" as the only operative part of the statute. Then, the mere act of being on a phone call while driving would have been prohibited. Alternatively, the legislature could have defined "using" as "holding the phone in the user's hand" without any reference to proximity to the ear. Obviously, since they inserted the language about "proximity to the ear," they intended only to prohibit calls where the phone is right by the driver's ear. Not only that, but the statute requires the phone to be in the immediate proximity of the ear, and not merely in the "proximity" of the ear, thus requiring that the phone actually be extremely close to (even if not touching) the ear. Perhaps they even inserted this language specifically to indicate that they were permitting the use of cell phones with the "speaker phone" feature, like mine!

The officer vehemently disagreed with me but nevertheless said that he would not give me the ticket. (!!!) I think he realized that I might take this to trial and didn't want to be cross-examined by this over-eager, Perry-Mason-Wanna-Be law student. Woo hoo!

Incidentally, my nine year old daughter made the policy argument that since the reason for the statute is to prevent distracted driving, that perhaps I shouldn't even use the speaker phone while driving in the spirit of the reason for the statute, which is probably the biggest question on my statutory construction argument. "Tamim Tihiye im Hashem Elokecha." "Be simple with the L-rd your G-d" (Deuteronomy 18:13).

Do any lawyers, law students, Lamdanim, Gemara Coppers or any others want to argue with my statutory interpretation? Please comment. :-)

-Dixie Yid

(Picture courtesy of City of La Palma)

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30 comments:

A Simple Jew said...

Brilliant!! Although, just as I usually can't follow a simple argument in Gemara, I got real confused with all the technicalities you mentioned and found my mind rapidly shutting down.

Ouch! Complex logic hurts my simple mind....

Ron Samet said...

git gezukt!

Stephen said...

Yes, you're wrong. Read the statute a little more closely.

The statute defines "immediate proximity." The phone merely needs to be at a distance that "permits the operator . . . to hear telecommunications transmitted over such mobile telephone, but shall not require physical contact with such operator's ear." Under that definition, if you're using a hands-free device, the phone could be as far away from you the back of your car but still in the "immediate proximity" of your ear because you listen to communications over the phone.

You and the officer's arguments all revolve around differences in your understandings of the ordinary meaning of "immediate proximity." If that term were not defined in the statute, it would be perfectly permissible to argue about how close the phone needs to be to your ear to be in its "immediate proximity." But the term is defined in the statute. And under the statute's definition, the phone was in the "immediate proximity" of your ear.

Stephen said...

The last sentence of first paragraph of the previous comment should have read "...because you can listen to communications over the phone."

DixieYid (جنوب يهودي) said...

Stephen,

Thanks for your comment. I considered your argument as well, but I think the interpretation of the statutory definition of "immediate proximity" cannot be be as you say. As you referenced, if your phone is in the back seat of the car, you'd also be in violation of the statute, since the phone can be heard when in speaker mode. Would you honestly argue that if one is talking on a phone that is sitting in the back seat of his car, not even in his hand, he is violation of the statute, merely because he is within earshot of the speaker phone? I don't think any ALJ would uphold such a ticket!

It would seem that it is untenable, then, to interpret the statute to mean that if a phone is anywhere in earshot of a driver that he has violated the statute. Which leads me to believe that when the statute defines immediate proximity as a "distance as permits the operator of a mobile telephone to hear telecommunications transmitted over such mobile telephone," it is referring to a distance at which one can hear the phone when it is not on speakerphone. Because again, if you define it as refering to any distance from which a phone can be heard, even on speakerphone, then one is left with the absurd conclusion that one can get a cell phone ticket when his phone is sitting in his back seat set on "speaker." And I do not think that anyone would seriously argue that this was the conclusion that the legislature intended.

-Dixie Yid

micha said...

All that said, it did tie up one hand while distracting you with a phone call. The purpose of the law wasn't complied to.

Admittedly, this is lifnim mishuras hadin, at least for NY law. Not sure if it's beyond the requirements of halakhah; I would guess that it depends on how well you personally multitask and still drive safely.

In any case, I would feel happier about your own safety if you avoided the ticket by using a hands-free phone rather than making diyuqim in the law. The law is tafeil in this case to it's very reasonable purpose.

-micha

Anonymous said...

You are clearly incorrect, and Stephen explained why. The statute defines what 'immediate vicinity' means, and you, under that definition, had the phone in the 'immediate vicinity.'

You are making a different argument: that the legislature did not mean to ban the use of speaker phones so broadly (they did not mean to ban phones as far away as the back of the seat, in your example). You may be correct, but again, that is a different question.

Note that both you and Stephen may be correct: it is possible both that you violated the statute AND you didn't violate the intent of the legislature when they wrote the statute.

Thus, did you violate the statute? Clearly yes.

Did you violate the intent of the legislature? Unknown-perhaps yes, perhaps no.

Your original question of course, was one of statutory interpretation -NOT of interpretation of legislative intent.

Sk

Anonymous said...

According to the text of the law you posted, you can't talk on a cell phone while driving but you can send text messages.

DixieYid (جنوب يهودي) said...

Micha,

I personally think that I drive carefully and that I can multi-task, but you're obviously right that that's a/the important concern. I wouldn't want to be a Bor B'reshus harabim.

SK,

Actually, I'm using the fact that I think that it is safe to assume that one who talks on a cell phone set on speaker, sitting in the back seat of one's car, is not in violation of the statute as a clear indicator that the statute's definition of "immediate proximity" must refer to a regular phone, not in speaker mode.

While it is true that legislatures have often created unintended consequences when judges have interpreted their inartfully written laws, this case is not the case here. The statute can be read to be ambiguous with regard to whether it is referring to phones in their regular mode, or even phones in their speaker mode. I am using the assumption that phones in the back of moving vehicles are not in violation of the statute as an indicator that the statute was referring specifically to phones that were not set in speaker mode.

All the best.

-Dixie Yid

micha said...

DY,

To step back and look at the meta-issue... You compared this to gemara logic. Aside from running the risk of being a bor (or, if you pay too much attention to the road and not the call, a bore <duck-n-run>), this attitude isn't really one a ben aliyah should
bring to halakhah either.

Perhaps this is the way one would argue a gemara in Volozhin or Brisk, but not in Telzhe.

When all is said and done, wouldn't a talmid of R Moshe Weinberger and a fan of R' Itamar Schwartz's "Bilvavi" seek to comply both to the letter of halachah and also the middos it implies?

-micha

PS: No offense meant to Briskers. If you find that learning halakhah and following it to the letter brings you to sheleimus without having to consciously pursue sheleimus and deveiqus, kol hakavod! However, that's not the derekh our host describes himself as following.

SFlaw said...

From the Statute:

"Immediate proximity" shall mean that distance as permits the operator of a mobile telephone to hear telecommunications transmitted over such mobile telephone.

Why do you think this does not mean speakerphone? All it says is the distance required to hear something coming out of the phone. With speakerphone you can hear it coming out of the phone from the back seat. Therefore if it is in the backseat and you are talking you are violating the statute.

You are creating this speakerphone distinction out of thin air. Your legislative purpose arguments are also similarly completely ignoring the plain text of the statute. Proximity is defined, clearly, in the above portion of the law.

I think you got out of the ticket because the cop didn't want to deal with you, not because you were actually correct.

SFlaw said...

OK, if I can correct my self after re-reading the stat, if it is in the backseat, you are not holding it, but if you are holding it, anywhere, it seems under the stat you are guilty due to the definition of immediate proximity.

DixieYid (جنوب يهودي) said...

Micha,

I definitely hear what you're saying. That's why it's good that I posted this so I could get feedback like yours to put my mind right. Big yasher koach.

SFlaw,

Although I can hear where you're coming from, I think your reading still violates the words of the statute its self. The definition stated that you have to be (1) holding the phone (2) in the immediate proximity of one's ear. According to your reading, you have blurred the distinction the statute is making between those who are holding the phone and those who are not only holding it, but holding it in the immediate proximity to his ear. According to your reading of the statute, it should have said simply "holding a mobile telephone" and left it at that. Since the statute continues on to specify that it must not only be held, but must be held "in the immediate proximity to the user's ear," I think that any definition which holds that all cell phone holding is in also in the category of "immediate proximity" is not an accurate reading of the statute.

All the best.

-Dixie Yid

OKLaw said...

Sounds like a fun experiment =D How did the officer react?

I don't think you argument is very persuasive, though. Your chin is close enough to your ear so that you can hear the phone call, whether on speaker or not (depending on the volume level). If you have your phone in the back seat set to speaker, you do not violate the statute because it is not in your hands, so no worries there. If you are holding the phone at arm's length, your argument becomes much stronger. But as it stands, the speaker phone issue seems to me irrelevant.

Akiva said...

DY - Significant psychological studies have proven that multi-tasking reduces reaction time significantly (as much as 90% if I remember correctly). Whether one is adjusting the radio, tying a tie, shaving, eating (all activities I've seen on the Garden State Parkway), or talking on a cell phone, ones reaction time falls through the floor.

The difference in cell phone talking versus the others is the length of time involved.

There was some early assumptions that it was the physical holding of a cell phone that produced the reduced reaction time. While there certainly is some affect of only having 1 hand to react in the first second, it's the split second difference between spotting the problem and swerving around it versus spotting it, thinking for a second, then dealing with the impact/result and trying to compensate in the middle of the situation.

My friend, I strongly advise limiting cell phone conversations in the car to sitting in traffic or empty road scenarios. No one can "handle it", our minds have certain natural limitations.

SFlaw said...

But Dixie, the statute defines "immediate proximity." It is anywhere where you can hear the transmission coming out of the phone. You are ignoring the statute's own definition.

Where is the ambiguity here?

tneloms said...

DY,

You say:
I think that any definition which holds that all cell phone holding is in also in the category of "immediate proximity" is not an accurate reading of the statute.

I think it is making the distinction. If you hold the cellphone on your lap without speakerphone, it is not in immediate proximity. If you hold it on your lap with speakerphone, it is in immediate proximity. If you hold it near your ear with or without speakerphone, it's in immediate proximity.

That seems to be a reasonable interpretation of the law as written (whether it's a good law under that interpretation is debatable). Your interpretation relies on an implied ("without speakerphone") clause that is simply not in the law.

Anonymous said...

Dixie Yid,

Geshmaka post, as all your posts! But as far as what stephen said, and what you answered back to him... I think that if the phone was not held in your hand (if it's on the seat for example), and was just being used on speaker phone.. it would not be a problem only becuase it is not in line with the second part of the statute; namely that it is no longer considered a "hand-held" device. (I think this is seen from the fact that part B of the statute continues to say "...but shall not include holding a mobile telephone to activate..." The ephasis on the holding infers that what it was talking about in the first part, namely: "Engage in a call" shall mean talking into or listening on a hand-held mobile telephone..." is only going on phones actually held in hand, and not just the type of "hand held phones". Secondly in svara.. a hand held phone placed on the seat is exactly the same as a phone built into the car, so it's hard to see that they should be different.

Also, about that you said that probably what they ment when they said: ""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." You think that what they meant was dafka to exclude talking on the speaker phone, but thats hard to understand seeing that the whole point of the law (as your daughter pointed out) is so that drivers wont be distracted, and a speaker phone (if the phone is being held), is just as distracting as holding it to your ear without the speaker phone... if not more since it's harder to hear.

Let me know what you think, and keep the geshmaka posts coming!

Miles said...

DixieYid,

I think you are correct, and Stephen et. al. are wrong, but not for the reasons you say. The statute prohibits someone (a) driving a car from (b) holding a mobile telephone within the distance that permits its operator to hear telecommunications transmitted over it while (c) talking into or listening on it.

Stephen et. al.'s argument is that you admit that you were driving a car and having a conversation on a mobile phone. So you satisfied (a) and (c). You also admit that you were holding a mobile phone. And, because you admit (c), you implicitly admit that you were holding it "within the distance that permits its operator to hear the telecommunications transmitted over it," so (b) is satisfied as well. Thus you're in violation of the statute.

Your counterargument is that, though you were facially in violation of (b), (b) should not be given its plain meaning because if it were then "if your phone is in the back seat of the car, you'd also be in violation of the statute, since the phone can be heard when in speaker mode," which is plainly absurd.

The problem with this response, as Stephen pointed out, is that if the phone were in the back seat then you wouldn't satisfy (b), because you wouldn't be "holding" it. So (b), on its plain meaning, does not have the absurd result you claim it does and you've given no reason to construe (b) differently.

But here's a different argument for the absurdity of (b). The statute implicitly permits "holding a mobile telephone to activate, deactivate or initiate a function of such telephone." It presumably also permits a series of functional initiations (e.g. you can open up your contact list and scroll through it). In other words you can hold the phone, scroll through your contact list etc., but if someone's voice is coming out of the phone while you're doing all this then (on the reading of (b) that Stephen et. al. favor) you're in violation of the statute. But what possible point could that serve?

The only difference is that noise is coming out of your phone while you're performing a series of permissible operations on it. Is the noise going to be distracting? Presumably that's not the idea - we don't ban books on tape or conversations in the car. So there's no good rationale for construing "immediate proximity" as (b), on its face, demands it be construed. Better to construe it according to the plain meaning of the term (that (b) was obviously trying, and failing, to give).

Akiva Feinstein said...

I think that is appropriate to mention here ,that in the sefer, Garden of Emunah p. 101 , Rabbi Arush goes through how a Jew should approach the process of being pulled over by a policeman, regardless of whether he thinks that he is at fault or not. He specifically mentions 3 aspects of emunah and the importance of davening. I don't know that I am on that level but it's something to strive towards and for everyone to look over and to also have on hand in the car.

Crawling Axe said...

Legal issues aside, what’s the difference between talking on the phone and talking to somebody else, sitting next to you? I’ve missed exists before, because I was discussing some idea, so just talking clearly has effect on attention. Or just thinking. Imagine a Chossid from back in the day driving a car, thinking about Hashem…

I don’t trust any studies involving humans — at least until I personally see statistics. And in most cases when I see statistics, the paper goes in the bin.

Crawling Axe said...
This comment has been removed by the author.
Crawling Axe said...

And yes, yasher koach.

I agree with what you said.

Actually, I think most people did not get what you were saying; you proved, using Gemara logic, that the law must have not applied to loudspeaker, for if it did — let the Mishna say… I mean… let the law simply mention holding in hand. Since holding in hand will always involve having it so close that you can hear it, the law cannot involve speaker, since in such a case, “so close that you can hear it” will be superfluous. So, in order for “so close you can hear it” have any function at all, the law must exclude speaker.

In any event, I think your actions should be applauded from Halachic point of view for two reasons: 1) you got out of ticket, 2) you stomped the cop. Obviously Hashem wants us to do both — therefore, you were Halachically correct.

This is why Jews should dress in a “uniform”. Had you worn a penguin dress (I am assuming you weren’t), the cop would remember you — and next time he stopped another frum yid, he would be more wary.

Miles, the function of scrolling down your list is perhaps to look up somebody’s number or information. If at the same time, somebody is hearing the voice, he is in violation of the law (if you ignore DY’s logic above).

DixieYid (جنوب يهودي) said...

Miles,

You are right about my argument about the back seat of the car being invalid. When I said that, I had forgotten about the requirement of "holding" the phone.

I like your argument as well giving a reason why the statute would permit scrolling the phone numbers in the phone with sound coming out versus holding it against your ear.

Then main argument that I have brought that I think is persuasive though is the consideration of the statute's requirements that one must be (1) holding the phone, (2) holding it at or in the *immediate* proximity of the ear and (3) that immediate proximity means a distance at which the phone can be heard. If one maintains that "hearing distance" exists anytime the phone is in one's hand, he destroys the distinction the statute makes between merely holding the phone versus holding it "in the immediate proximity of the user's ear," which is untenable. Thus, the hearing distance refered to in the "immediate proximity" requirement must be interpreted to have it's plain meaning, which is "really really close to the ear."

Akiva Feinstein,

I don't have "Gan Ha'Emnuah." Could you tell us breifly what Rav Arush says we should do in such situations? By the way, as I hope I made clear in the main post, I was completely respectful at all times. He's just doing his job, and just because I didn't agree with his interpretation of the statute doesn't mean that I don't apppreciate the work he does or that I don't have full respect for him as a police officer.

Crawling Axe,

I appreciate your comment very much, though I would have to disagree with one part of what you said. You said that it is G-d's will that we "stomp" the cops. I don't see where you could come to that. Rav Moshe Feinstein and many other great Rebbeim have talked about what a great country we live in, and that this is truly a "Medina Shel Chesed," a country built on kindness. I understand why you come from a different perspective though. Coming from the former Soviet Union, where the police served a truly evil purpose most of the time, I can understand your outlook. But I would argue that here in America, we should not bring that attitude toward the police with us.

Anonymous said...

Why is it that this item on your blog (about getting out of a ticket for speaking on a cell phone) had many responses? If I were to ask you- why can't I speak with the Creator for longer than 5 minutes a day instead of an hour?- would that have as many responses?

DixieYid (جنوب يهودي) said...

Anon,

Good question. Our priorities and interests are not where they should be!

But on a practical level, the main reason there were so many responses is that that post was linked to by a major legal blog, The Volokh Conspiracy (http://volokh.com/archives/archive_2009_01_11-2009_01_17.shtml#1231868819). I got more hits yesterday from that link that I usually get in a week, normally. So b'derech hateva, that's the reason for the larger than normal number of comments.

Crawling Axe said...

I don't see where you could come to that.

By joking? :) (Forgot the smileys.)

Mostly I have no problem with police. I do believe, however, that people who give out parking tickets are out to get me.

DixieYid (جنوب يهودي) said...

Crawling Axe,

Oops. Sorry. That's the problem with written communication. No facial or tone-of-voice clues. :-)

Akiva said...

Crawling - statistically you are correct, all extended driving distractions indeed increase driving risk and reduce reaction time in a similar way. This is exactly why, as you said, if you're in a strong conversation (whether with a passenger in the car or on the phone) you can drive right by the exit without noticing.

By removing your conscious attention, you're relying on your unconscious alert system to raise an alert in your conscious mind, the conscious to re-engage - pay attention - evaluate and react. This works perfectly well when walking, you glance ahead then look away to other things - if your legs give feedback that there's a problem (you start to stumble) or something moves into sight through peripheral vision, you get a "what's that" thought, pay attention, evaluate and react.

At walking speed that works fine, it takes a second to fall over so you have time to engage, evaluate, and react-compensate. At driving speeds you simply don't have the time. By the time you've responded to the "what's that" and started to evaluate, you're already in the middle of the situation.

If you're really paying attention to an audio shiur in the car, the problem is the same. Great for sitting in traffic though. However, interactive conversation requires more attention, leaving even less focus on the road (you _have_ to pay attention because you have to process the input and respond.)

This is why many states have been toying with "driving while distracted laws". While somewhat impractical (how is an officer supposed to measure whether one was paying attention to a shiur or not?), the point remains the problem is not the cell phone, it's any form of extended attention focus.

Is not-extended attention focus a problem as well? Yes, and many a common accident is "I didn't see him" during that moment of looking away (when I dropped my whatever).

This, btw, is why auto-braking systems and other automated response systems begin to make sense that auto manufacturers have been working on (before they all started to go out of business). Giving the human a tiny bit more time to evaluate and react while the car makes the initial quick reaction (which is usually just slam-the-brakes for most people, with the occasional jerk-the-wheel).

Now forming laws trying to deal with these facets of human capability versus technology use is indeed tricky.

Anonymous said...

As Dixieyid's loving wife I am going to state for the record that I prefer that he drive with his eyes forward and two hands on the wheel! In regards to the "spirit of the law" think about the things we do in everyday life with two hands...of course we CAN do most with one, but it is more effective and sometimes safer to use two. wouldn't carry a a child down the stairs with two hands even if you COULD do it with one? Carry an expensive vase or lamp? Hot soup? Whould you do any of these with your eyes closed? (looking away from the road)I think that Akiva's point is important,when we are driving we are moving with such speed that even with our full attention directed at a task we have little time to react. I think that we have all (myself included)become so comfortable with driving that we feel over confident and forget that our cars have the potential to do much harm if not handled with care and our comlete attention.