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As an attorney, I get all kinds of calls from people who received tickets for talking on a cell phone and driving. However not every one who gets a ticket is actually talking on a cell phone or texting (or driving for that matter). I have had calls from people who were scratching their ear and the officer thought that they had a cell phone in their hand. I have received calls from people who had a Ipod classic in their hand (which is legal because an Ipod classic does not transmit information remotely nor does it receive information from remote sources.) I have had calls from people who were holding a phone in their hand, but were actually using a blue tooth, and people who have had both hands on the wheel which received Cell Phone Tickets.

A call I received yesterday was a first, a women received a cell phone ticket for blowing into an interlock device.

A motorist who is convicted of a DWI must purchase and install an interlock device on their car which is monitored by a company. Before the motorist starts the car the driver must blow into the device which checks if they have any alcohol in their breath. In addition, while they are driving, the interlock device notifies them from time to that they must retake the breath test. If they fail to take the test or if they fail the alcohol test the interlock device stops the vehicle mid motion.

What is interesting about this case is that the interlock device does receive and transmit information to a remote location: the monitoring company. In addition the interlock is partially hand held (not like a GPS which is mounted and the driver does not need to touch it while driving), as the driver needs to hold the device while they blow into it. The reason why this is not a violation of the cell phone law (NYS VTL 1225-d) is because the interlock device is not a "portable" device as it is attached to the car.

The officer may very well come to court and forget what the motorist had in her had, and claim that he or she saw a cell phone not an interlock device. This is because police officers don't always remember what they saw, and the officer may simply read the ticket and say "oh I saw her holding a cell phone." This is one reason why an traffic ticket attorney must cross examine the officer to see what exactly they remember, and if the officer is recreating the story on the spot. 

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