Prohibits the use of a portable electronic device while operating a bicycle upon a public highway, bicycle lane or roadway; provides certain exceptions; further prohibits local governments from regulating the use of a portable electronic device by bicycle operators.
STATE OF NEW YORK
________________________________________________________________________
111--A
2015-2016 Regular Sessions
IN ASSEMBLY(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:
1 Section 1. The vehicle and traffic law is amended by adding a new
2 section 1238-a to read as follows:
3 § 1238-a. Use of portable electronic devices; prohibited. 1. For the
4 purposes of this section, the following terms shall mean:
5 (a) "Portable electronic device" shall mean any hand-held mobile tele-
6 phone, personal digital assistant (PDA), handheld device with mobile
7 data access, laptop computer, pager, broadband personal communication
8 device, two-way messaging device, electronic game, or portable computing
9 device, or any other electronic device when used to input, write, send,
10 receive, or read text for present or future communication.
11 (b) "Using" shall mean holding a portable electronic device to, or in
12 the immediate proximity of, the user's ear; or their hand while viewing,
13 taking or transmitting images, playing games, or, for the purpose of
14 present or future communication: performing a command or request to
15 access a world wide web page, composing, sending, reading, viewing,
16 accessing, browsing, transmitting, saving or retrieving e-mail, text
17 messages, instant messages, telephone calls, or other electronic data.
18 (c) "Hand-held mobile telephone" shall mean a mobile telephone with
19 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
1 (d) "Hands-free mobile telephone" shall mean a mobile telephone that
2 has an internal feature or function, or that is equipped with an attach-
3 ment or addition, whether or not permanently part of such mobile tele-
4 phone, by which a user engages in a call without the use of either hand,
5 whether or not the use of either hand is necessary to activate, deacti-
6 vate or initiate a function of such telephone.
7 (e) "Engage in a call" shall mean talking into or listening on a hand-
8 held mobile telephone, but shall not include holding a mobile telephone
9 to activate, deactivate or initiate a function of such telephone.
10 (f) "Immediate proximity" shall mean that distance as permits the
11 operator of a mobile telephone to hear telecommunications transmitted
12 over such mobile telephone, but shall not require physical contact with
13 such operator's ear.
14 2. (a) Except as otherwise provided in this section, no person shall
15 operate a bicycle upon a public highway, bicycle lane or roadway while
16 using a portable electronic device to engage in a call while such bicy-
17 cle is in motion.
18 (b) An operator of a bicycle who holds a portable electronic device
19 to, or in the immediate proximity of his or her ear while such bicycle
20 is in motion is presumed to be engaging in a call within the meaning of
21 this section. The presumption established by this subdivision is rebutt-
22 able by evidence tending to show that the operator was not engaged in a
23 call.
24 (c) The provisions of this section shall not be construed as authoriz-
25 ing the seizure or forfeiture of a portable electronic device, unless
26 otherwise provided by law.
27 3. Subdivision two of this section shall not apply to (a) cities
28 having a population of more than one million, (b) the use of a portable
29 electronic device for the sole purpose of communicating with any of the
30 following regarding an emergency situation: an emergency response opera-
31 tor; a hospital, physician's office or health clinic; an ambulance
32 company or corps; a fire department, district or company; or a police
33 department, (c) any of the following persons while in the performance of
34 their official duties: officers or employees of any federal, state, or
35 city law enforcement agency; a member of a fire department, district or
36 company; or the operator of an authorized emergency vehicle as defined
37 in section one hundred one of this chapter, (d) the use of a hands-free
38 mobile telephone or a portable electronic device in a voice activated
39 mode, or (e) the use of a portable electronic device while remaining in
40 a stationary position during such use.
41 4. It shall be a traffic infraction to violate the provisions of
42 subdivision two of this section punishable by a civil penalty of not
43 more than fifty dollars. Notwithstanding the foregoing, a person shall
44 not be liable for a civil penalty for a first violation of subdivision
45 two of this section unless damage to real property or the personal prop-
46 erty of another or personal injury was caused due to an incident involv-
47 ing a bicycle operated by such a person at the time of such first
48 violation. In addition, any person who violates any provision of subdi-
49 vision two of this section more than once within any eighteen month
50 period shall be subject to the imposition of an additional civil penalty
51 of not less than fifty dollars nor more than two hundred dollars.
52 § 2. Except as otherwise provided in section one of this act, no
53 municipal corporation, as defined in section 2 of the general municipal
54 law, shall, after June 1, 2015, enact any local law, ordinance or code
55 relating to the operation of a bicycle while using a portable electronic
56 device unless the terms of such law, ordinance or code are identical to
A. 111--A 3
1 section 1238-a of the vehicle and traffic law, as added by section one
2 of this act. The provisions of this act shall invalidate and preempt any
3 such local law, ordinance or code, enacted after June 1, 2015 unless the
4 terms of such law, ordinance or code are identical to section 1238-a of
5 the vehicle and traffic law, as added by section one of this act.
6 § 3. The provisions of this act shall preempt any local law, ordi-
7 nance, code, rule or regulation relating to the operation of a bicycle
8 while using a portable electronic device, except that nothing in this
9 act shall preclude any state or local agency, which, by permit, license
10 or registration regulates the business or professional activities of
11 individuals from imposing more stringent restrictions than provided in
12 this act for the use of portable electronic devices upon such individ-
13 uals during the course of engaging in the business or professional
14 activity that is the subject of such agency's permit, license or regis-
15 tration.
16 § 4. For the purpose of informing and educating persons who operate
17 bicycles in this state, any law enforcement official authorized to issue
18 appearance tickets pursuant to the vehicle and traffic law may, during
19 the period commencing November 1, 2015 and ending November 30, 2015,
20 stop a bicyclist and issue verbal warnings to persons who would be in
21 violation of the provisions of section 1238-a of the vehicle and traffic
22 law, as added by section one of this act, were the provisions thereof
23 effective on the day such warning is issued.
24 § 5. The court shall waive any fine for which a person who violates
25 the provisions of section 1238-a of the vehicle and traffic law, as
26 added by section one of this act, would be liable if such person
27 supplies the court with proof that, between the date on which he or she
28 is charged with having violated such section and the appearance date for
29 such violation, he or she possesses a hands-free mobile telephone as
30 defined in paragraph (d) of subdivision 1 of section 1238-a of the vehi-
31 cle and traffic law, as added by section one of this act; provided,
32 however, that such waiver of fine shall not apply to a second or subse-
33 quent violation under such section.
34 § 6. This act shall take effect immediately, except that sections one,
35 three and five of this act shall take effect December 1, 2015; section
36 two shall expire and be deemed repealed December 1, 2015; section four
37 of this act shall take effect November 1, 2015 and shall expire and be
38 deemed repealed December 1, 2015; and section five of this act shall
39 expire and be deemed repealed March 1, 2016.
