S T A T E   O F   N E W   Y O R K
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                                 111--A

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 7, 2015
                               ___________

Introduced  by M. of A. DINOWITZ, GALEF, ORTIZ, QUART -- Multi-Sponsored
  by -- M. of A.  GOTTFRIED -- read once and referred to  the  Committee
  on  Transportation  --  committee  discharged,  bill  amended, ordered
  reprinted as amended and recommitted to said committee

AN ACT to amend the vehicle and traffic law, in relation to  prohibiting
  the  use of a portable electronic device while operating a bicycle and
  to prohibit local governments from  regulating  the  use  of  portable
  electronic  devices by bicycle operators; and providing for the repeal
  of certain provisions upon expiration thereof

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  The  vehicle  and  traffic law is amended by adding a new
section 1238-a to read as follows:
  S 1238-A. USE OF PORTABLE ELECTRONIC DEVICES; PROHIBITED. 1.  FOR  THE
PURPOSES OF THIS SECTION, THE FOLLOWING TERMS SHALL MEAN:
  (A) "PORTABLE ELECTRONIC DEVICE" SHALL MEAN ANY HAND-HELD MOBILE TELE-
PHONE,  PERSONAL  DIGITAL  ASSISTANT  (PDA), HANDHELD DEVICE WITH MOBILE
DATA ACCESS, LAPTOP COMPUTER, PAGER,  BROADBAND  PERSONAL  COMMUNICATION
DEVICE, TWO-WAY MESSAGING DEVICE, ELECTRONIC GAME, OR PORTABLE COMPUTING
DEVICE,  OR ANY OTHER ELECTRONIC DEVICE WHEN USED TO INPUT, WRITE, SEND,
RECEIVE, OR READ TEXT FOR PRESENT OR FUTURE COMMUNICATION.
  (B) "USING" SHALL MEAN HOLDING A PORTABLE ELECTRONIC DEVICE TO, OR  IN
THE IMMEDIATE PROXIMITY OF, THE USER'S EAR; OR THEIR HAND WHILE VIEWING,
TAKING  OR  TRANSMITTING  IMAGES,  PLAYING GAMES, OR, FOR THE PURPOSE OF
PRESENT OR FUTURE COMMUNICATION: PERFORMING  A  COMMAND  OR  REQUEST  TO
ACCESS  A  WORLD  WIDE  WEB  PAGE, COMPOSING, SENDING, READING, VIEWING,
ACCESSING, BROWSING, TRANSMITTING, SAVING  OR  RETRIEVING  E-MAIL,  TEXT
MESSAGES, INSTANT MESSAGES, TELEPHONE CALLS, OR OTHER ELECTRONIC DATA.
  (C)  "HAND-HELD  MOBILE  TELEPHONE" SHALL MEAN A MOBILE TELEPHONE WITH
WHICH A USER ENGAGES IN A CALL USING AT LEAST ONE HAND.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD01427-02-5

A. 111--A                           2

  (D) "HANDS-FREE MOBILE TELEPHONE" SHALL MEAN A MOBILE  TELEPHONE  THAT
HAS AN INTERNAL FEATURE OR FUNCTION, OR THAT IS EQUIPPED WITH AN ATTACH-
MENT  OR  ADDITION, WHETHER OR NOT PERMANENTLY PART OF SUCH MOBILE TELE-
PHONE, BY WHICH A USER ENGAGES IN A CALL WITHOUT THE USE OF EITHER HAND,
WHETHER  OR NOT THE USE OF EITHER HAND IS NECESSARY TO ACTIVATE, DEACTI-
VATE OR INITIATE A FUNCTION OF SUCH TELEPHONE.
  (E) "ENGAGE IN A CALL" SHALL MEAN  TALKING  INTO  OR  LISTENING  ON  A
HAND-HELD MOBILE TELEPHONE, BUT SHALL NOT INCLUDE HOLDING A MOBILE TELE-
PHONE TO ACTIVATE, DEACTIVATE OR INITIATE A FUNCTION OF SUCH TELEPHONE.
  (F)  "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  BICYCLE UPON A PUBLIC HIGHWAY, BICYCLE LANE OR ROADWAY WHILE
USING A PORTABLE ELECTRONIC DEVICE TO ENGAGE IN A CALL WHILE SUCH  BICY-
CLE IS IN MOTION.
  (B)  AN  OPERATOR  OF A BICYCLE WHO HOLDS A PORTABLE ELECTRONIC DEVICE
TO, OR IN THE IMMEDIATE PROXIMITY OF HIS OR HER EAR WHILE  SUCH  BICYCLE
IS  IN MOTION IS PRESUMED TO BE ENGAGING IN A CALL WITHIN THE MEANING OF
THIS SECTION. THE PRESUMPTION ESTABLISHED BY THIS SUBDIVISION IS REBUTT-
ABLE BY EVIDENCE TENDING TO SHOW THAT THE OPERATOR WAS NOT ENGAGED IN  A
CALL.
  (C) THE PROVISIONS OF THIS SECTION SHALL NOT BE CONSTRUED AS AUTHORIZ-
ING  THE  SEIZURE  OR FORFEITURE OF A PORTABLE ELECTRONIC DEVICE, UNLESS
OTHERWISE PROVIDED BY LAW.
  3. SUBDIVISION TWO OF THIS SECTION  SHALL  NOT  APPLY  TO  (A)  CITIES
HAVING  A POPULATION OF MORE THAN ONE MILLION, (B) THE USE OF A PORTABLE
ELECTRONIC DEVICE FOR THE SOLE PURPOSE OF COMMUNICATING WITH ANY OF  THE
FOLLOWING REGARDING AN EMERGENCY SITUATION: AN EMERGENCY RESPONSE OPERA-
TOR;  A  HOSPITAL,  PHYSICIAN'S  OFFICE  OR  HEALTH CLINIC; AN AMBULANCE
COMPANY OR CORPS; A FIRE DEPARTMENT, DISTRICT OR COMPANY;  OR  A  POLICE
DEPARTMENT, (C) ANY OF THE FOLLOWING PERSONS WHILE IN THE PERFORMANCE OF
THEIR  OFFICIAL  DUTIES: OFFICERS OR EMPLOYEES OF ANY FEDERAL, STATE, OR
CITY LAW ENFORCEMENT AGENCY; A MEMBER OF A FIRE DEPARTMENT, DISTRICT  OR
COMPANY;  OR  THE OPERATOR OF AN AUTHORIZED EMERGENCY VEHICLE AS DEFINED
IN SECTION ONE HUNDRED ONE OF THIS CHAPTER, (D) THE USE OF A  HANDS-FREE
MOBILE  TELEPHONE  OR  A PORTABLE ELECTRONIC DEVICE IN A VOICE ACTIVATED
MODE, OR (E) THE USE OF A PORTABLE ELECTRONIC DEVICE WHILE REMAINING  IN
A STATIONARY POSITION DURING SUCH USE.
  4.  IT  SHALL  BE  A  TRAFFIC  INFRACTION TO VIOLATE THE PROVISIONS OF
SUBDIVISION TWO OF THIS SECTION PUNISHABLE BY A  CIVIL  PENALTY  OF  NOT
MORE  THAN  FIFTY DOLLARS. NOTWITHSTANDING THE FOREGOING, A PERSON SHALL
NOT BE LIABLE FOR A CIVIL PENALTY FOR A FIRST VIOLATION  OF  SUBDIVISION
TWO OF THIS SECTION UNLESS DAMAGE TO REAL PROPERTY OR THE PERSONAL PROP-
ERTY OF ANOTHER OR PERSONAL INJURY WAS CAUSED DUE TO AN INCIDENT INVOLV-
ING  A  BICYCLE  OPERATED  BY  SUCH  A  PERSON AT THE TIME OF SUCH FIRST
VIOLATION. IN ADDITION, ANY PERSON WHO VIOLATES ANY PROVISION OF  SUBDI-
VISION  TWO  OF  THIS  SECTION  MORE THAN ONCE WITHIN ANY EIGHTEEN MONTH
PERIOD SHALL BE SUBJECT TO THE IMPOSITION OF AN ADDITIONAL CIVIL PENALTY
OF NOT LESS THAN FIFTY DOLLARS NOR MORE THAN TWO HUNDRED DOLLARS.
  S 2. Except as otherwise provided in  section  one  of  this  act,  no
municipal  corporation, as defined in section 2 of the general municipal
law, shall, after June 1, 2015, enact any local law, ordinance  or  code
relating to the operation of a bicycle while using a portable electronic
device  unless the terms of such law, ordinance or code are identical to

A. 111--A                           3

section 1238-a of the vehicle and traffic law, as added by  section  one
of this act. The provisions of this act shall invalidate and preempt any
such local law, ordinance or code, enacted after June 1, 2015 unless the
terms  of such law, ordinance or code are identical to section 1238-a of
the vehicle and traffic law, as added by section one of this act.
  S 3. The provisions of this act shall preempt  any  local  law,  ordi-
nance,  code,  rule or regulation relating to the operation of a bicycle
while using a portable electronic device, except that  nothing  in  this
act  shall preclude any state or local agency, which, by permit, license
or registration regulates the business  or  professional  activities  of
individuals  from  imposing more stringent restrictions than provided in
this act for the use of portable electronic devices upon  such  individ-
uals  during  the  course  of  engaging  in the business or professional
activity that is the subject of such agency's permit, license or  regis-
tration.
  S  4.  For  the purpose of informing and educating persons who operate
bicycles in this state, any law enforcement official authorized to issue
appearance tickets pursuant to the vehicle and traffic law  may,  during
the  period  commencing  November  1, 2015 and ending November 30, 2015,
stop a bicyclist and issue verbal warnings to persons who  would  be  in
violation of the provisions of section 1238-a of the vehicle and traffic
law,  as  added  by section one of this act, were the provisions thereof
effective on the day such warning is issued.
  S 5. The court shall waive any fine for which a  person  who  violates
the  provisions  of  section  1238-a  of the vehicle and traffic law, as
added by section one of  this  act,  would  be  liable  if  such  person
supplies  the court with proof that, between the date on which he or she
is charged with having violated such section and the appearance date for
such violation, he or she possesses a  hands-free  mobile  telephone  as
defined in paragraph (d) of subdivision 1 of section 1238-a of the vehi-
cle  and  traffic  law,  as  added by section one of this act; provided,
however, that such waiver of fine shall not apply to a second or  subse-
quent violation under such section.
  S 6. This act shall take effect immediately, except that sections one,
three  and  five of this act shall take effect December 1, 2015; section
two shall expire and be deemed repealed December 1, 2015;  section  four
of  this  act shall take effect November 1, 2015 and shall expire and be
deemed repealed December 1, 2015; and section five  of  this  act  shall
expire and be deemed repealed March 1, 2016.