S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                   549

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 5, 2011
                               ___________

Introduced  by M. of A. DINOWITZ, GALEF, MAYERSOHN, ORTIZ -- Multi-Spon-
  sored by -- M. of A.  GOTTFRIED, WEISENBERG -- read once and  referred
  to the Committee on Transportation

AN  ACT to amend the vehicle and traffic law, in relation to prohibiting
  the use of a mobile telephone while operating a bicycle and to prohib-
  it local governments from regulating the use of mobile  telephones  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 MOBILE TELEPHONES; PROHIBITED. 1. FOR THE PURPOSES OF
THIS SECTION, THE FOLLOWING TERMS SHALL MEAN:
  (A) "MOBILE TELEPHONE" SHALL MEAN THE DEVICE USED BY  SUBSCRIBERS  AND
OTHER USERS OF WIRELESS TELEPHONE SERVICE TO ACCESS SUCH SERVICE.
  (B)  "WIRELESS  TELEPHONE  SERVICE" SHALL MEAN TWO-WAY REAL TIME VOICE
TELECOMMUNICATIONS SERVICE THAT IS INTERCONNECTED TO A  PUBLIC  SWITCHED
TELEPHONE  NETWORK AND IS PROVIDED BY A COMMERCIAL MOBILE RADIO SERVICE,
AS SUCH TERM IS DEFINED BY 47 C.F.R. S 20.3.
  (C) "USING" SHALL MEAN HOLDING A MOBILE TELEPHONE TO, OR IN THE  IMME-
DIATE PROXIMITY OF, THE USER'S EAR.
  (D)  "HAND-HELD  MOBILE  TELEPHONE" SHALL MEAN A MOBILE TELEPHONE WITH
WHICH A USER ENGAGES IN A CALL USING AT LEAST ONE HAND.
  (E) "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.

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

                                                           LBD04482-01-1

A. 549                              2

  (F)  "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.
  (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  BICYCLE UPON A PUBLIC HIGHWAY, BICYCLE LANE OR ROADWAY WHILE
USING A MOBILE TELEPHONE TO ENGAGE IN A CALL WHILE SUCH  BICYCLE  IS  IN
MOTION.
  (B)  AN  OPERATOR  OF A BICYCLE WHO HOLDS A MOBILE TELEPHONE 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  REBUTTABLE
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 MOBILE TELEPHONE, UNLESS OTHERWISE
PROVIDED BY LAW.
  3. SUBDIVISION TWO OF THIS SECTION SHALL NOT APPLY TO (A) THE USE OF A
MOBILE TELEPHONE 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, (B) ANY OF THE FOLLOWING PERSONS WHILE IN THE PERFORMANCE OF
THEIR  OFFICIAL DUTIES: A POLICE OFFICER OR PEACE OFFICER; 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,
OR (C) THE USE OF A HANDS-FREE MOBILE TELEPHONE.
  4.  A  VIOLATION OF SUBDIVISION TWO OF THIS SECTION SHALL BE A TRAFFIC
INFRACTION AND SHALL BE PUNISHABLE BY  A  FINE  OF  NOT  MORE  THAN  ONE
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, 2012, enact any local law, ordinance or code
relating to the operation of a bicycle while using  a  mobile  telephone
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. The provisions of this act shall invalidate and  preempt  any  such
local  law,  ordinance  or  code,  enacted after June 1, 2012 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  mobile telephone, except that nothing in this act shall
preclude any state or local agency, which, by permit, license or  regis-
tration regulates the business or professional activities of individuals
from  imposing more stringent restrictions than provided in this act for
the use of mobile telephones upon such individuals during the course  of
engaging in the business or professional activity that is the subject of
such agency's permit, license or registration.
  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, 2012 and ending November 30, 2012,
stop a bicyclist and issue verbal warnings to persons who  would  be  in

A. 549                              3

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 (e) 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,  2012;  section
two  shall  expire and be deemed repealed December 1, 2012; section four
of this act shall take effect November 1, 2012 and shall expire  and  be
deemed  repealed  December  1,  2012; and section five of this act shall
expire and be deemed repealed March 1, 2013.