S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2435
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 20, 2017
                                ___________
 
 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
 
 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:
   §  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.
   (D)  "HANDS-FREE  MOBILE TELEPHONE" SHALL MEAN A MOBILE TELEPHONE THAT
 HAS AN INTERNAL FEATURE OR FUNCTION, OR THAT IS EQUIPPED WITH AN ATTACH-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD03179-01-7

 A. 2435                             2
 
 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 TELEPHONE
 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.
   §  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, 2017, 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
 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

 A. 2435                             3

 such local law, ordinance or code, enacted after June 1, 2017 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.
   §  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.
   § 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, 2017 and  ending  November  30,  2017,
 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.
   §  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.
   § 6. This act shall take effect immediately, except that sections one,
 three and five of this act shall take effect December 1,  2017;  section
 two  shall  expire and be deemed repealed December 1, 2017; section four
 of this act shall take effect November 1, 2017 and shall expire  and  be
 deemed  repealed  December  1,  2017; and section five of this act shall
 expire and be deemed repealed March 1, 2018.