While we are not legal experts we can give you information on the cell phone law in New York to see if it can help you determine if you can get a get a ticket for talking on a cell phone while your vehicle is in park.
As you know, New York state law does not allow you to use a hand-held cell phone or mobile device while you drive. In 2001, New York became the first state to prohibit drivers from talking on hand-held devices while operating a motor vehicle. You may use a hand-held cell phone or mobile device only when you call 911 or contact medical, fire or police help in an emergency. You are allowed to use your phone with a hands free device.
You can be cited by law enforcement for using a hand-held cell phone or mobile device while driving in NYS, and will be required to pay a maximum fine of $100 and mandatory surcharges of $50. If you receive a ticket for this violation the DMV does not assign any violation points to the driver's record.
[Let CarInsurance.com help you find affordable auto insurance now.] Section 1225-c of the New York Vehicle and Traffic Laws is titled use of mobile telephones and notes under this part of NYS law "Using" shall mean holding a mobile telephone to, or in the immediate proximity of, the user's ear."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.
"Hand-held mobile telephone" shall mean a mobile telephone with which a user engages in a call using at least one hand.
"Hands-free mobile telephone" means a mobile telephone that has an internal feature or function, or that is equipped with an attachment or addition, whether or not permanently part of such mobile telephone, 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, deactivate or initiate a function of such telephone.
"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.
In Paragraph 2 this part of the New York Vehicle and Traffic Laws it states that except as otherwise provided in this section, no person shall operate a motor vehicle upon a public highway while using a mobile telephone to engage in a call while such vehicle is in motion. An operator of a motor vehicle who holds a mobile telephone to, or in the immediate proximity of his or her ear while such vehicle is in motion is presumed to be engaging in a call within the meaning of this section.
The NYS DMV site notes that you can use a hand-held cell phone if the vehicle does not move. However they say to park your vehicle in a safe location off the road to use the phone.
So whether someone can talk on the phone if the car's transmission is placed in park while stopped at a red light, waiting for a parking spot, etc seems to be up to an interpretation of the cell phone law where it states that "no person shall operate a motor vehicle upon a public highway while using a mobile telephone to engage in a call while such vehicle is in motion."
How "in motion" is defined by New York law we are uncertain since we are not legal experts but we would advise you to seek out a lawyer with this expertise if you were cited for this offense. A lawyer should be able to help you determine if there is case law out there defining "in motion" and if you could fight the ticket.
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In some states laws specifically say that any vehicle not legally parked is considered a vehicle in transit (motion) so it is if you want to fight the ticket it is important for you to find out if NYS has a definition of in motion. If the law in place states that a car which is not properly and legally parked is still be in motion (since you would have to move into the parking space just as the person at a red light would have to place their transmission into drive when the light turns green) than it would be difficult to fight your citation.
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