By Joseph Spector
Albany Bureau Chief
ALBANY, NY - Texting-while-driving tickets have soared in recent years, but only 44 percent have led to convictions so far, state records show.
A backlog of court cases, the ability to plea down the charges and the difficulty in proving a person was texting and driving has made convictions elusive in New York, law-enforcement officials said.
"One of the difficulties would be, if the text hasn't been completed, it would be difficult to prove that a text was sent in the process of driving," said Peter Kehoe, executive director of the state Sheriff's Association.
WEB EXTRA: Click here for a database to tickets and arrests by county.
The conviction rate for talking on a cell phone was nearly double the rate compared to texting tickets, records analyzed by Gannett's Albany Bureau from the state Department of Motor Vehicles showed.
About 82 percent of tickets for talking on a cell phone led to convictions on the charge between 2001 and May 2013. The texting law took effect in 2009.
The trend is changing, however, and enforcement of the texting while driving is increasing.
In 2012, 66 percent of the texting tickets that were processed led to convictions on the charge, and 21 percent were pleaded down.
Prosecutors said they are offering less leniency because of the emergent dangers of distracted driving, which has led to high-profile deaths involving teenagers.
The Monroe County District Attorney's Office is refusing to plea down texting tickets, judges said.
"In our court, they are not doing any reductions on these," said Pittsford Town Judge John Bernacki. "They are either going to trial or they are pleading guilty to them."
Gov. Andrew Cuomo on June 1 implemented tougher distracted-driving regulations. The penalty increased from three points to five points on a license for a conviction of texting or talking on a cell phone behind the wheel.
The Legislature on Thursday passed other components of Cuomo's proposal. Texting will be added to driving infractions for probationary and junior licenses that can lead to a 60-day suspension.
"The governor's goal is to condition new drivers not to develop life-threatening habits, prevent avoidable tragedies caused by texting and driving, and ultimately save lives," said Cuomo's spokesman Richard Azzopardi. "With this legislation, we've taken a big step forward toward reaching this goal."
The change in points, prosecutors said, makes texting a more serious charge. As a result, they will be less likely to let a person plea it down to a violation that doesn't include points on a license, such as dropping a texting ticket to a parking ticket.
"I don't plea down many of these. I usually hold them to the points. It's an epidemic out there with the cell phones," said Colin McGovern, a town judge in Tarrytown, Westchester County.
Broome County had included texting tickets in a diversion program for moving violations. The program allows a person to complete a driving safety course and pay a fine, and then the ticket is dismissed.
Distracted-driving tickets will no longer be allowed into the program, said Broome County District Attorney Gerald Mollen. He said he hopes the change will be a further deterrent for drivers.
"I think it will have an impact. How big an impact? I couldn't say," Mollen said.
The increase in points may have an unexpected consequence: More drivers will challenge the tickets, prosecutors said. That will mean fewer people will simply plead guilty, and they'll either seek a plea deal or go to trial - which could further burden the court system.
Five points on a license is serious. If a driver gets six points within 18 months, a person is slapped with a driver responsibility assessment by the state and a fine of at least $100 a year.
If a driver gets 11 points in 18 months, a license is suspended for typically 31 days. So a texting conviction and a major speeding ticket - going more than 20 mph over the speed limit - could lead to a suspended license.
"I would think that people are going to be looking for or hoping for a significant reduction" for a texting ticket, said Joseph Charbonneau, a town attorney in Carmel, Putnam County.
"They are going to be right up against that six-point cap for the driver's responsibility assessment to kick in, and 11 or more points you are going to lose your license," he said.
Ontario County District Attorney Michael Tantillo said the five points is a "big hit and an appropriate hit." He said he's ordered county prosecutors to rarely allow for plea deals; sometimes the ticket is tossed when it's tied to a more serious charge that a person pleads guilty to.
"The role should be aggressive enforcement and prosecution," he said. "Obviously, they raised the point for a very simple reason: This is extremely dangerous."
In 2011, Cuomo increased the number of points for a texting-while-driving infraction from two to three. The law also made the charge a primary offense so police could pull someone over specifically for texting behind the wheel.
Since the change, texting tickets have soared, from about 3,500 in 2011 to 30,000 in 2012. At the same time, cell phone tickets dropped 37 percent between 2009 and 2012, presumably as more people turn to hand-free devices.
With texting, there's no legal alternative, and Cuomo has made it clear that it's illegal and dangerous. He has three teenaged daughters.
Texting takes a driver's eyes off the road for about 4.6 seconds -- the equivalent of driving the length of a football field while blind, a 2009 report from the Virginia Tech Transportation Institute found.
Records from the state DMV showed that the highest number of tickets issued for texting were for drivers aged 22 to 30. People aged 26 had the most, roughly 2,300 tickets.
"We want the message to be very clear to young drivers: Don't do it and don't think about doing it," Cuomo said May 31.
Texting and driving has become more dangerous than drunken driving. In 2011, there were 25,165 fatalities and injuries involving distracted driving in New York, compared to 4,628 caused by alcohol-related incidents, Cuomo's office said.
Texting conviction rates have varied by county since 2009, records showed.
The conviction rate was 56 percent in Monroe County, and 50 percent in Ontario County. In the Southern Tier, it was 42 percent in Tompkins County, 46 percent in Broome County and 63 percent in Chemung County.
In the Hudson Valley, the conviction rate was 29 percent in Westchester County, 22 percent in Rockland and 16 percent in Putnam. In Dutchess, the conviction rate was 19 percent.
"In Dutchess, we take (texting) very seriously," Dutchess County Capt. John Watterson. "But what happens when the ticket makes its way through the court process, it sometimes ends up being pleaded down for a variety of reasons."
In some counties, there is a lack of a uniformed policy on how tickets are disposed - mainly downstate where traffic court is overseen by each town or village and not by the county's district attorney.
"It's an issue. Where's the responsibility?" Tantillo said of some counties that don't have county oversight of local courts.
Some judges said because of a backlog of cases, they are only starting to see texting cases in their courts, and some could be a year or more old. That is part of why convictions rates may be low so far, they estimated, because the cases have yet to be adjudicated.
Charles Schiano, Jr, a judge in Greece, Monroe County, which is one of the largest towns in the state with nearly 100,000 people, said he'd yet to have a texting trial.
Other judges said people are fighting the tickets by bringing in GPS devices and claiming they using them and not their phones. In some cases, a judge decides a case by looking at phone records.
"If you see a cell phone in someone's hand, it might be difficult for an officer to testify that I know for sure that this individual is texting at that point in time," said Jeremy Murray, an assistant district attorney in Chemung County.
The intent of tougher texting-while-driving laws could be jeopardized if it's not pared with stronger prosecution, said Cathy Chase, senior director of government relations for Advocates for Highway and Auto Safety, based in Washington D.C.
"It's a concern if there is a public message being sent that the laws aren't effective and are not evenly enforced," she said.
-- Texting-while-driving tickets have soared, but just 44 percent have led to convictions since 2009
-- About 82 percent of tickets for talking on a cell phone led to convictions between 2001 and May 2013
-- Conviction rates for texting are improving, up to 66 percent in 2012
-- The highest number of tickets issued for texting were for drivers aged 22 to 30. People aged 26 had the most, roughly 2,300 tickets.
-- Texting tickets have soared, from about 3,500 in 2011 to 30,000 in 2012. Cell phone tickets dropped 37 percent between 2009 and 2012