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Saturday, April 26, 2014

Man found guilty of electronic cigarette law that does not exist

Photo by Joe Raedle/Getty Images
Story written by and thanks to Jeff Sherwood and Knoxville Business Examiner
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On March 20, 2014, I brought you a story about the first man to ever get a ticket in the United States for using an electronic cigarette while driving. Today (Mar. 22), I had the opportunity to sit down and speak with the accused man, Jason Dewing, via a telephone conversation to get further information on the incident. His story paints a picture of the injustices that are occurring in Upstate New York and makes one wonder if “vapers” are being targeted due to the amount of controversy surrounding the e-cigarette industry.
“I didn’t know why I was being pulled over,” said Jason Dewing when I asked him what the first thing that popped into his mind was when he saw the blue lights. He went on to say, “I saw a police officer sitting at a stop sign when I pulled off the highway and the next thing I knew I was being pulled over. When the officer came up to my car he demanded to see the cell phone in my hand. I told him I didn’t have a cell phone that it was an electronic cigarette.” At that point the officer became argumentative and insisted that he saw a cell phone in Jason’s hand. Not wanting to risk putting himself in a worse position, Jason did not argue back and waited as the officer wrote him a ticket for violation of New York traffic law 1225-d.
The incident happened in November 2013; however, Mr. Dewing’s court date was set for March 20, 2014. During the trial, it was Jason’s burden to prove that he in fact did not have a cell phone in his hands when he was stopped by the New York State Police while driving through Whitney Point, NY. When the arresting officer took the stand he could not tell the judge what color the cell phone was which Jason says is a distinct shade of bright red and should be easily identifiable.
In addition, Jason Dewing used to work in loss prevention and used to do Private Investigation work. He was able to get his cell phone records subpoenaed for the court hearing. With those records Jason was able to show the court that the last time he used his cell phone prior to being pulled over was at a gas station 8 miles from the spot where he was ticketed for using his cell phone while driving. After matching those records with the gas station receipt along with the officer’s testimony the judge was satisfied that Mr. Dewing was not using a cell phone while driving; however, this is where the story takes a turn.
Since the court failed to prove that Mr. Dewing was using a cell phone, they went after him for using the electronic cigarette. “The judge asked me if I know what the ‘e’ in e-cigarette means,” said Jason. “I told him it means electronic.” At this point the judge told Mr. Dewing that he was using a portable electronic device which is a violation of New York traffic law 1225-d. Jason, refusing to let the court off that easy, told him that an electronic cigarette was not classified as a portable electronic device under the law. He says, “They were baffled. In fact, they didn't even know the law. The District Attorney had to look it up after I recited it to them. It is ridiculous that I have never been to law school and do not make it a habit of studying the law, yet I had to tell them what their own law was!” Unfortunately for Jason, the law was not known by the court until after they had already found him guilty of violating New York traffic law 1225-d.
There is a bright side to this story for Jason Dewing. “The judge told me that if I would have made them aware of the law before he made his ruling he would have dismissed the ticket, but since he already made his ruling, the only way to overturn it was to go to appeals court.” Jason feels that he has a very good chance of the case being appealed since the law that he was found guilty of breaking does not even exist. “The way the law is written, an e-cigarette cannot make a call nor can it send text or data; therefore, it cannot be a portable electronic device,” said Jason.
Jason says since the story was first reported there are a lot of people who are angry over this issue. “It is understandable that people are upset, but I count this as a win, because it gives me the opportunity to show that District Attorneys and judges here in New York do not know the laws that they are accusing people of breaking. It also gives me a way to help other people who might be accused of the same thing in the future.”
After speaking with Jason, he does not feel like he was targeted for using an electronic cigarette while driving. Jason told me, “The officer truly believed I had a cell phone in my hand when he pulled me over.” Still, those who are “vaping” while driving will feel a little on edge the next time they pass an officer while using an e-cigarette. It is a sad day in America when one driver can pass an officer smoking a tobacco cigarette and not warrant a second glance, but when another driver passes an officer “vaping” an electronic cigarette he finds himself in front of a judge trying to explain the law.
Mr. Dewing will have 30 days to submit his appeal on this case. As soon as there is new information on a final decision I will have an update right here on as well as on my Vol Vapors blog. Make sure you are subscribed on here as well as on my blog to get updates as soon as there is new information available.

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