QTH.COM Swap Chat

WB2IQU was on his way to breakfast Sunday morning May 30 2010,
and got pulled over by a Troy, NY Police Officer in an unmarked car.

http://capitalregion.ynn.com/content/to ... r-talking/

CLIFTON PARK , N.Y. --Sunday morning, Steve Bozak took a drive to Troy . On the way, he talked to his buddies using his ham radio. But he didn't expect to talk to a police officer next.

Bozak said, "He assured me that I was not to be talking on that cell phone. I said this isn't a cell phone. It's an amateur radio. He said it's all the same."

Bozak was issued this ticket for talking on a mobile device while driving. He says his ham radio may look like a phone, but it's not.

Bozak said, "It is not a cell phone and there is no dialing. It's not connected to the telephone service in any way. It's a two way radio. It's very similar to one the policeman had in his car at the moment."

The main difference between a ham radio and a cell phone is the ham radio is put to your mouth and the cell phone is put to your ear.

Arnold Proskin, a legal expert said, "It's not grey at all. It's black and white. The statute is very clear, very specific. It must be to your ear. It must be a cell phone and that's what we're talking about."

We reached out to Troy Police to get their take. They said since this case is ongoing, they didn't want to comment and potentially impact a judge's ruling. Meanwhile, Bozak says ham radios don't only allow people to communicate with one another, they can also provide a public service.

Bozak said, "If there is any natural disaster anywhere the amateur radio system will continue to stay up and running because we aren't connected to the grid."

Bozak's court date is later this month. He faces up to a $100 fine.

Bozak said, "I hope the law will be modified so all the other 3,000 ham operators driving across the Capital District can drive without the fear of a police car pulling us over. It's terribly inconvenient for all of us."

I know Steve, and am sure that he was not rude to the Policeman.



73 de K2HAT Lee

http://www.troyrecord.com/articles/2010 ... 492287.txt

Amateur radio enthusiasts abuzz over traffic ticket
Published: Thursday, June 03, 2010 By Dave Canfield The Record TROY —

Amateur radio enthusiasts are abuzz on the airwaves over a traffic ticket Steve Bozak received Sunday in Troy as he talked to his buddies over the very same frequency.

Bozak, who owns an antenna company and has been using so-called “ham” radios for 34 years, was pulled over at the intersection of 15th and Hoosick streets while on his way to breakfast with fellow enthusiasts of the technology. He was slapped with a ticket for talking on a cell phone while driving, and he said Officer Mark Millington dismissed his claims that the radio was not in fact a telephone.

“He assured me that I could not be speaking on that cell phone while I was driving,” said Bozak, who lives in Clifton Park. “I mentioned to him politely that it wasn’t a cell phone but an amateur radio. He assured me that it was all the same.”

The section of New York’s vehicle and traffic law Bozak was cited for violating, 1225-c, requires a phone to be “in the immediate proximity” of the driver’s ear. It defines the types of communication devices it applies to as ones “interconnected to a public switched telephone network … provided by a commercial mobile radio service.”

On its face, the statute does not appear to refer to devices like a ham radio, which transmits its signal across the same airwaves as devices used by emergency personnel to communicate with each other and with dispatchers.

Such radios do not require the user to place the device to his or her ear — they are typically played over speakers — and need only be held while the user is actually speaking.

New York is among eight states with a law banning the use of cell phones while driving. Washington’s law specifically excludes ham operators, who must first be licensed by the government to use the airwaves.

Bozak, who became licensed in 1976, said he believes the bulk of users have the devices in their vehicles. He said many are up in arms over the ticket, and some were audible on a scanner Wednesday voicing their displeasure over their radios — many of them while driving.

“I don’t know how many cops I’ve been around in how many different states, but nobody ever said a word to me,” said one man whose job takes him on the road.

Ultimately, a Troy City Court judge will decide whether the ticket issued to Bozak is acceptable under the state’s law.

Sgt. Terry Buchanan, the Police Department’s spokesman who worked traffic patrols for years, said he doesn’t recall this issue coming up in the past. He said the department would have no comment on the matter because it is still pending in court.

Bozak is scheduled to appear on June 23, and he said more than a dozen fellow radio enthusiasts plan on being there with him.

He faces a $100 fine, according to the statute.

“I’ll have my day in court, and we’ll see how it goes,” he said. “But I certainly have every intention of pushing this politely, and through the right methods, to get it resolved.”

The date may be pushed back because Bozak has requested a supporting deposition from Millington, who is typically assigned to Troy’s public schools and rarely works traffic patrol.

Bozak wants Millington to detail what happened and explain how he was breaking the law.

“He’s going to have to prove that I was on a cell phone, which is going to be hard to do,” he said. “I wasn’t on a cell phone.”
73 K2HAT

I understand the reasoning of the officer being as the Law was written to stop using a cell phone while driving for obvious safety reason's. But how could a officer be confused between a Cell phone and a HT radio. My guess is he was not willing to back down and admit a citizen might be more correct than him. Unfortunately the power attitude happens in other professions and i'm betting the Judge dismisses the charges.

There are likely hundreds of police officers out there in NY who neither realize nor understand the difference between a cell phone and a HT. There is a similar problem with LEO's who insist that an Amateur Radio transceiver is a "scanner" (which we all know to be, under all circumstances, a criminal tool ).

I have been asked, when going through a "detail", about the radio in my car... such things as, "is that a scanner?" (Answer: No), and "can that thing pick us up?" (Answer: If I took the time and had the desire to program it for such, but right now it does not ).

The only LEO's who apparently understand what a ham radio is are those who are also hams or may have a friend/relative who is a ham. Some quick and simple education about ham radio for the LE community may be a good idea.

Lee, please keep us up to date concerning this case.

Normally the officer must articulate what the person was stopped for which led up to the issuance of the summons. The cell phone summons in NY can be issued alone but the officer must make mention of some other violation which led up to the stop. See the highlighted sections below..


§1225-c. Use of mobile telephones.

1. For purposes of this section, the following terms shall mean:

(a) "Mobile telephone" shall mean the device used by subscribers and other users of wireless telephone service to access such service.
(b) "Wireless telephone service" shall mean two-way real time voice telecommunications service that is interconnected to a public switched telephone network and is provided by a commercial mobile radio service, as such term is defined by 47 C.F.R. S 20.3.
(c) "Using" shall mean holding a mobile telephone to, or in the immediate proximity of, the user's ear.
(d) "Hand-held mobile telephone" shall mean a mobile telephone with which a user engages in a call using at least one hand.
(e) "Hands-free mobile telephone" shall mean 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.
(f) "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.
(g) "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.

2. (a) 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. (b) 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 presumption established by this subdivision is rebuttable by evidence tending to show that the operator was not engaged in a call. (c) The provisions of this section shall not be construed as authorizing the seizure or forfeiture of a mobile telephone, unless otherwise provided by law.

3. Subdivision two of this section shall not apply to (a) the use of a mobile telephone for the sole purpose of communicating with any of the following regarding an emergency situation: an emergency response operator; a hospital, physician's office or health clinic; an ambulance company or corps; a fire department, district or company; or a police department, (b) any of the following persons while in the performance of their official duties: a police officer or peace officer; a member of a fire department, district or company; or the operator of an authorized emergency vehicle as defined in section one hundred one of this chapter, or (c) the use of a hands-free mobile telephone.

4. A violation of subdivision two of this section shall be a traffic infraction and shall be punishable by a fine of up to one hundred dollars.

§1225-d. Use of portable electronic devices.

1. Except as otherwise provided in this section, no person shall operate a motor vehicle while using any portable electronic device while such vehicle is in motion.

2. For the purposes of this section, the following terms shall have the following meanings:

(a) "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.

(b) "Using" shall mean holding a portable electronic device while viewing, taking or transmitting images, playing games, or composing, sending, reading, viewing, accessing, browsing, transmitting, saving or retrieving e-mail, text messages, or other electronic data.

3. Subdivision one of this section shall not apply to (a) the use of a portable electronic device for the sole purpose of communicating with any of the following regarding an emergency situation: an emergency response operator; a hospital; a physician's office or health clinic; an ambulance company or corps; a fire department, district or company; or a police department, (b) any of the following persons while in the performance of their official duties: a police officer or peace officer; a member of a fire department, district or company; or the operator of an authorized emergency vehicle as defined in section one hundred one of this chapter.

4. A person who holds a portable electronic device in a conspicuous manner while operating a motor vehicle is presumed to be using such device. The presumption established by this subdivision is rebuttable by evidence showing that the operator was not using the device within the meaning of this section.

5. The provisions of this section shall not be construed as authorizing the seizure or forfeiture of a portable electronic device, unless otherwise provided by law.

6. A violation of this section shall be a traffic infraction and shall be punishable by a fine of not more than one hundred fifty dollars. Provided, however, that a summons for operating a motor vehicle in violation of this section shall only be issued when there is reasonable cause to believe that the person operating such motor vehicle has committed a violation of the laws of this state other than a violation of this section.