oos E-Newsletter #272: Of Pretzel Logic and E-Cigarettes


Jason Dewing’s story has a surreal quality to it. Well, it did take place in traffic court so anything is possible.

Dewing was stopped by an Upstate New York police officer for driving while using his cell phone. Only he wasn’t using his cell phone, he was smoking an electronic cigarette. The officer didn’t believe him and wrote him a ticket. Dewing showed up in court and used phone records to show he was not using his phone at the time of traffic stop.

The judge acknowledged as much, but that wasn’t the end of it. The judge claimed that Dewing’s e-cigarette qualified as a portable electronic device under New York law (after all, it’s got batteries, it’s portable and it’s a device) so Dewing was still guilty.

Dewing countered by reciting the New York statute (1225-d) that covers driving while using portable electronic devices:

“Portable electronic device” shall mean any hand-held mobile telephone, as defined by subdivision one of section twelve hundred twenty-five-c of this article, 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.

Clearly an e-cigarette doesn’t meet that definition. Neither does a flashlight, an mp3 player, a camera, a hearing aid, a wristwatch or any number of medical devices. But by the judge’s logic it’s not inconceivable that a driver could land in hot water for using any one of them while driving in Upstate New York.

The judge and the DA were noned by Dewing’s knowledge of the law; neither was familiar with these requirements, and the DA actually had to look up the statute to confirm the language. But it was too late, the judge had already found Dewing guilty. Case closed, though Dewing is considering an appeal based on judicial ignorance and stubbornness.

This case shows how important it is to know exactly what you’ve been charged with—you may be the only person in the courtroom who actually does. Cell phone/texting laws vary widely from state to state. (Check this excellent source to view each state’s statute.) They define “portable electronic device” or “handheld electronic device” in different ways. Some focus more on how such devices are used than on their physical characteristics or technical capabilities. Let’s look at some examples.

Maine’s statute defines portable electronic device as “any portable electronic device that is not part of the operating equipment of a motor vehicle, including but not limited to an electronic game, device for sending or receiving e-mail, text messaging device, cellular telephone and computer.”

Note that the “but not limited to” loophole shows up in numerous state statutes and could conceivably lead to the kind of nonsensical, arbitrary judgment Dewing received.

Minnesota’s law focuses on the use of a “wireless communications device” while driving without defining what that device actually is. However the requirements regarding use are fairly specific: “No person may operate a motor vehicle while using a wireless communications device to compose, read, or send an electronic message, when the vehicle is in motion or a part of traffic.” The law also carefully defines what an “electronic message” is and isn’t.

Connecticut spells it out this way:

 ‘Mobile electronic device’ means any hand-held or other portable electronic equipment capable of providing data communication between two or more persons, including a text messaging device, a paging device, a personal digital assistant, a laptop computer, equipment that is capable of playing a video game or a digital video disk, or equipment on which digital photographs are taken or transmitted, or any combination thereof, but does not include any audio equipment or any equipment installed in a motor vehicle for the purpose of providing navigation, emergency assistance to the operator of such motor vehicle or video entertainment to the passengers in the rear seats of such motor vehicle.

That’s a mouthful, but it’s worth knowing if you ever get hauled before a Connecticut judge for changing the settings on your iPod while driving.

Any time you get a traffic citation you need to determine the following:

  • Is the law/ordinance listed on the ticket related to the reason you were stopped and cited?
  • Is the law/ordinance referenced on your citation for some other violation and is in fact in error?
  • Were your actions really in violation of this law?

Do the research and find out before you end up tangling with a DA or judge who’s determined to take you down the rabbit hole just because they don’t know the law.

Editor’s Note: The oos takes no position on the use of e-cigarettes by responsible adults. 

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