N.Y. Cell Phone Ban Sets a Dangerous Course, Attorney Argues

June 8, 2006

The state’s cell phone ban could clear the way for laws in New York against anything that causes accidents, from having a pet in the car to drinking coffee, warned a lawyer fighting to have the ban declared unconstitutional.

“This is a new kind of law,” James Ostrowski said in Erie County Court Wednesday. “It’s not about how you drive, it’s about how you live your life.”

Ostrowski, representing a motorist fined $105 for talking on her cell phone in suburban Kenmore in 2004, is appealing the conviction. But he said the case is about more than a traffic ticket.

“Almost all prior legislation concerning driving regulated the rules of the road: how you drive,” he told Judge Shirley Troutman. “With the cell phone law, we entered the previously uncharted territory trying to figure out all the little things in life that may or may not be the cause of accidents, then banning or regulating those activities.”

New York, in 2001, became the first state to prohibit drivers from talking on hand-held devices while operating a motor vehicle. Using a phone with a handsfree headset is permitted.

Proponents said the law was meant to reduce traffic accidents and save lives.

“It’s a green light to Albany. You’re going to have 15 more laws,” Ostrowski said on behalf of his client, Tracy Diina.

Kenmore village prosecutor Kevin Stocker argued that because the statute addressed safety, it met the constitutional challenge.

“Driving a vehicle is a privilege. It’s not a civil right, so the court just has to look at the legislative intent and whether it has a reasonable relation to its intended use,” he said.

Ostrowski argued the statute violates the free speech clauses of the state and federal constitutions, interferes with interstate commerce and violates state and federal equal-protection clauses by singling out one activity without citing others that may be equally hazardous, such as using a hand-held computer or citizens band radio.

In a legal brief, Ostrowski said he had found only one precedent to his challenge of the ban: People vs. Neville in Nassau County in 2002. In that case, a judge upheld the constitutionality of the law. No appeals court has ever ruled on the issue, he said.

Troutman reserved her decision.

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