I promised a long time ago to post this information for the benefit of hams throughout NY State. The rules of Paralegal Certification preclude my wife and I from outright giving legal advice. However we are allowed to advise individuals where to look for information.

On August 5th of 2003, the Honorable Judge John W. Hallett of the Town of Leray Court set forth an opinion that would help to further define the role of the Amateur Radio Operator as referred to in NY VTL 397. I am not putting forth a copy of such traffic law other than what is mentioned here in the ruling. As you will see, discretion above and beyond the mere words of the VTL were considered when reaching this conclusion.

The following document has not been openly published but is available from the Town of Leray, NY Court Clerk. It is controlling law in only one jurisdiction in NY, that being the Town of Leray itself (including all of the Fort Drum containment zone and most of the reservation). This ruling is considered persuasive law in all of the lower courts in NY such as the towns and villages. At the County Court level and above throughout the State it is merely suggestive law. There has not been a challenge to this ruling coming from the Town of Leray to date. In fact it was upheld as recently as 2008. There is certainly more research that needs to be done as time allows. If you find anything worth posting, please consider sharing it here.

P.C. Cox

Here are some additional notable decisions that are rarely applied:

People v. Verdino 78 Misc.2d 719 at 722, 357 N.Y.S.2d at page 772 (1974)

"...the vehicle was equipped with a receiver as proscribed in the statute since the receiving device was located within the defendant's truck and was specifically prepared to be used within a vehicle as manifested by the fact that the receiving device had an electrical power cord which was adapted to receive current through the standard vehicular cigarette lighter socket. The Court might reach a different conclusion if the receiver was non-functional or if additional effort had to be expended in order to make the receiver operational."

I remember in High School changing the band width and coverage of my history teacher's am car radio so that he could listen to SW broadcast stations while driving to and from work. Just suppose for a moment that I could do the same thing to an FM car 'stereo' and achieve police frequencies on it. Why is this relevant you ask? There are members of my family that do not have a Ham Radio license and occasionally use my truck. I use and maintain a hardwired scanner in dash with the other radio equipment as per the exemption in §397. I take the same precautions with the possible unauthorized use of the scanner as I do when disabling the transmit function of the other equipment when I am not present in the vehicle by removing the required key that turns the console on and off. To suggest that someone driving my truck is in violation of §397 when not licensed is like saying that all car stereos are potential police frequency receivers too. What are your thoughts?

People v. Moore, 92 Misc.2d 807, 401 N.Y.S.2d 440, and People v. Faude, 88 Misc.2d 434, 388 N.Y.S.2d 562

These two deal with the difference and definitions between "receiving" and "detecting" signals and what "signals" are. In radio terms, a signal is intelligible modulation (or audio); to receive is to demodulate audio, to detect is to alert he observer to the presence of a radio emission. Thus §397 deals only with receiving or interfering with audio transmissions.

And you might get a kick out of this:

The language of Vehicle and Traffic Law, Section 397 was originally passed by the legislature in 1933 as Section 1916 of the Penal Law. See: McKinneys Session Laws 1933, Chapter 405. The relevant wording remained unchanged through the years. In 1948, the law changed to exclude licensed amateur radio operators, and in 1966, the term ‘motor vehicle’ replaced the word ‘automobile.’ (L.1948, ch. 183; L.1966, ch. 620.)