Friday, July 6, 2012

The Erosion of Our Rights: First Seat Belts and Now Cell Phones Are Primary


Everyone is so concerned over a frontal assault on our 4th amendment rights. The right to be Free From Unreasonable Search and Seizure in our homes, cars, boats, and persons. What most of us have failed to see is that they have whittled away our rights with a host of legislation striking at common devices and involving driving a car. Who doesn't drive, and own a cell phone? Who doesn't drive, and listen to music?

Primary versus Secondary Offenses

With an offense that is classified as Primary: The police can STOP your car if they see it.
With an offense that is classified as Secondary: The police cannot STOP your car if they just see it.

They can issue a violation for secondary offenses if you are already stopped for another offense which is in fact primary. New York State's re-classification of cell phone tickets in 2011 as primary had a huge impact. Now we are living under a law when the use of any electronic device as a primary offense means the police have a constitutional right to pull you over (make a stop) if they believe you are using "anything" while driving. If you add to this New York's prior seat belt legislation as a primary offense, and you begin to see the bigger picture.

The Threshold, The Line, and Your Privacy Are Shrinking

The threshold used to be any equipment violation and/or moving violation would be enough to pull over a car. That was enough New York State PC (probable cause) to launch into a DWI or other investigation.

Once the police have PC to make a lawful stop of a car, well it opens the door to sniff, check, question, and open you up so to speak. Your right to privacy is no longer present, and you are subject to search and seizure. The increased number of criminal arrests for UPM (unlawful possession of marijuana), DWI (Driving While Intoxicated), and AUO (aggravated Unlicensed Operation) within the past year all stem from the shift of the illegal use of portable electronic devices to primary law enforcement status.

Why Is Distracted Driving Limited to the Use of Portable Electronic Devices?

I still wonder why NYS currently classifies Illegal activity as “holding” any electronic device and:

  • Composing, sending, reading, accessing, browsing, transmitting, saving, or retrieving electronic data such as e-mail, text messages, or web pages
  • Viewing, taking, or transmitting images or Playing games
There is a host of other more driver involving distracted driving. I have four kids, when they were younger if they didn't distract me while driving that would be a feat short of amazing.

The new law does NOT include using a mounted GPS or other device or eating while driving or putting on make up while driving or reading a book or magazine while driving. 

Key Takeaways:

  1. Be aware that you have little to NO privacy in your car or anyone else's. 
  2. Be aware that even the appearance of using a portable device could trigger a lawful stop of your car.
  3. Beware that this may lead to a lawful search of your car and of your person.
  4. Beware that this may lead to even a seizure of you or of anything you are carrying or possessing.


Lawrence (Larry) Newman, D.C., J.D.

Doctor of Chiropractic
Attorney and Counselor at Law

504 North Aurora Street
Ithaca, NY 14850

607-229-5184