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  1. #1
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    Default Hand Held Wireless Telephone, Prohibited Use, CVC 23123(A)

    My question involves a traffic law from the state of: California

    Can one get cited/convicted on CVC 23123 (a) simply by holding/touching phone? I've heard of cases where people were pulled over/cited simply for holding on to the phone (not talking) while driving. Seems to me to be an over-broad interpretation of the law, as it clearly states 'while using a wireless telephone', and holding is not the same as using. Many phones can also function as GPS navigation devices, which is clearly allowed by law.

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    Default Re: CVC 23123. (A) Hand Held Wireless Telephone Prohibited Use

    You focus on the "using a wireless telephone," but you cannot just ignore the rest of the statute:
    23123. (a) A person shall not drive a motor vehicle while using a wireless telephone unless that telephone is specifically designed and configured to allow hands-free listening and talking, and is used in that manner while driving.

    Now, I fully agree that this law is pretty poorly written. But, it does not specify "using" as only conducting a telephone conversation. Using a GPS app (or looking up an address in your contacts, or playing "flying birds" for that matter) is still "using" the phone. So, no, such use is not "clearly allowed by law." And, note that it specifies "specifically designed and configured to allow hands-free listening and talking." So, no matter what you are "using" the phone for, it has to be configured for hands-free and used in that manner. Theoretically, you could be using the phone as a hammer to crack walnuts and still be considered "using" the phone.

    And, BTW, you cannot get around the "wireless" part by attaching your charger or any other "wire." "Wireless" refers to the method the phone uses to connect to the telephone network. So, even an old 1980's car-phone (using a wired handset to attach to a console mounted phone) is still a "wireless" phone.
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    Default Re: CVC 23123. (A) Hand Held Wireless Telephone Prohibited Use

    Thanks for the reply. I appreciate hearing from LEOs on this.

    Quote Quoting PTPD22
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    But, it does not specify "using" as only conducting a telephone conversation. Using a GPS app (or looking up an address in your contacts, or playing "flying birds" for that matter) is still "using" the phone.
    One could argue that using the device in that manner is not 'using a wireless telephone' else the law would have specified 'electronic devices' instead of wireless telephone. Also, from the rest of the sentence ("specifically designed and configured to allow hands-free listening and talking, and is used in that manner while driving."), the rest of the statue, and the history of the law it seems pretty clear it was meant for speaking on the cell phone. I believe there are also jurisdictions where 'GPS use' has been used to dismiss the citations.

    Also, if such broad definition of 'using a wireless telephone' is intended, there would be no need to enact CVC 23123.5 (a) two years later as texting would be covered under 23213 (a). 23123.5 (c) also specifically excludes using the 'Contacts' feature of the phone, which would also contradict 23123 (a) if interpreted in that manner.

    Quote Quoting PTPD22
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    So, no, such use is not "clearly allowed by law."
    I was referring to SB 1567, which obviously implies that GPS use in vehicle is allowed.

    It seems to me that this law is so loosely written and interpreted that it is open to ambiguity on what is 'using a wireless telephone'.

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    Default Re: CVC 23123. (A) Hand Held Wireless Telephone Prohibited Use

    Quote Quoting LBaker
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    ... holding is not the same as using.
    My thinking is if you're not using, you should refrain from holding!

    Seriously.. What did people do 3 or 4 years ago? When phones did not have GPS, were not 16Gigs and 32Gigs and had a music library on them. If either of those features are that important to you, it is in your best interest and if only to avoid the scrutiny you might face otherwise, set those up BEFORE you start driving.

    Quote Quoting LBaker
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    I was referring to SB 1567, which obviously implies that GPS use in vehicle is allowed.
    Well, browsing the internet is allowed as well, or at least it isn't prohibited. But why would you be doing that while driving?

    As I said above, if GPS is important, and since you could not get in the car to go somewhere if you don't already know the final destination, set it up before you get on the road!

    Quote Quoting LBaker
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    It seems to me that this law is so loosely written and interpreted that it is open to ambiguity on what is 'using a wireless telephone'.
    And knowing that, please, feel free to be the one who gets cited, challenges it in court, loses, takes it to appeal... All the way up to the California Supreme court to prove your point!

    Until then, or until someone does, my guess is people will continue to use their cell phones while driving, they'll continue to get cited continue to bitch and nag about how ambiguous the law is and how they were wrongfully cited! I doubt you're going to get it resolved on an online forum!

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    Default Re: CVC 23123. (A) Hand Held Wireless Telephone Prohibited Use

    Quote Quoting That Guy
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    My thinking is if you're not using, you should refrain from holding!
    This being 2012, there are many uses for smart phones beyond talking. GPS, music player, traffic info, etc. I'm sure you know that. Many of those uses do not require more attention from the driver than changing the radio, listening to music or similar.

    Quote Quoting That Guy
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    If either of those features are that important to you, it is in your best interest and if only to avoid the scrutiny you might face otherwise, set those up BEFORE you start driving.
    Umm, innocent until proven guilty? I would like to live in a country where I do not have to watch the everyday things I do simply because laws are ambiguous.

    Quote Quoting That Guy
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    As I said above, if GPS is important, and since you could not get in the car to go somewhere if you don't already know the final destination, set it up before you get on the road!
    Perhaps you drive a Prius and never have the need to look for a gas station in the middle of a trip...

    Quote Quoting That Guy
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    Until then, or until someone does, my guess is people will continue to use their cell phones while driving, they'll continue to get cited continue to bitch and nag about how ambiguous the law is and how they were wrongfully cited! I doubt you're going to get it resolved on an online forum!
    Thanks for your suggestion. I am hoping LEOs and people experienced with this law can shed some light on how it is interpreted/enforced, both at the law-enforcement and court level.

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    Default Re: CVC 23123. (A) Hand Held Wireless Telephone Prohibited Use

    By the way, I am curious as to why you've only opted to include 23123(a) in this discussion, when in fact California law prohibits text messaging/emailing as well!!!!

    I mean the actions you describe will more likely net you a texting citation instead of a voice call citation!!! So why argue how talking on the phone should not be prohibited when you're citing "typing into and using a GPS application to look up a gas station" as an example?

    You do know that CVC 23123.5 prohibits texting/emailing while driving, correct?


    Quote Quoting LBaker
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    This being 2012, there are many uses for smart phones beyond talking. GPS, music player, traffic info, etc. I'm sure you know that.
    One would think that a smart guy like you, would read this sentence: "What did people do 3 or 4 years ago? When phones did not have GPS, were not 16Gigs and 32Gigs and had a music library on them", and conclude that it was referring to things (GPS, plenty of memory for music) we didn't have in the past (3 or 4 years ago) but do have now...

    So what is the common denominator between my post and cell phone laws?

    They are both "ambiguous".... You can be sure though that was not intentional on my part, though I cannot speak for the legislature!


    Quote Quoting LBaker
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    Many of those uses do not require more attention from the driver than changing the radio, listening to music or similar.
    You can try and trivialize it or simplify it... You are talking about using functions that require more attention than pushing a button a radio, or more attention than simply sitting there (with your eyes closed if you must) listening to music...

    You are talking about entering (typing) info into an application, having it search for listings, then you select a listing, either read the address and be done or, more likely, elect to have the app figure out driving directions, all of which are tasks which require your attention for time periods where you should be concentrating on driving. And at the end of the day, it really doesn't matter if you're distracted for an entire minute, or a mere second... It only takes the latter for someone to cut you off... or slam their brakes on front of you... etc!

    I'll agree that the law does not explicitly prohibit using GPS, your music player, or playing Solitaire on your phone either! That does NOT mean you should be performing any of those tasks either way. If you think that an officer is prohibited from assuming that you were using your phone instead of selecting which genre of music you'd like your music player to shuffle for you that day, or that he is obligated to listen to your explanation, ot that he cannot cite for "scratching your ear", then think again, all three times, then think again... Here are 4 most recent threads discussing 23123 on this forum:

    One:

    Quote Quoting jane22
    View Post
    I explained to the officer that the device in my hand was an MP3 player, NOT a phone. It is, in fact, an Ipod Touch, which looks like a phone, but isn't even capable of making a phone call!
    Guess what? The reason Jane was here was because a citation was issued to her by the officer! Jane never came back to report a final outcome!

    Two:

    Quote Quoting kbbart
    View Post
    I got a ticket this week, for cell phone CVC 23123A. I was pulled over for this violation. I never saw the motorcycle cop until he was beside me. He pulled me over, and gave me the ticket. I told him I was speaking to my husband's doctor at the time he pulled me over.
    ^She thought that speaking to her husband's doctor (about who knows what) qualified for an exemption to the emergency call provision under 23123. She never reported the outcome either!


    Three:

    Quote Quoting kanbrown
    View Post
    I was pulled over by a motorcycle cop for "cell phone use." He claimed that I passed him while using the phone. At the time, I had the phone in my right hand at about the level of the steering wheel and was about to dial. The phone was connected to my bluetooth system which is located on my visor and plays through the radio, but requires the person to dial manually (through the phone).
    Kanbrown thought his use fits under the "hands free listening or talking" definition. He was issued a citation... One post and never came back to let us know if his interpretation was right or not!

    If I had won under any of those circumstances, I would have come back and let people know what happened and what worked for me!


    And four makes one more (*)...

    Quote Quoting jefsanger
    View Post
    I was given a cell phone ticket about 3 weeks ago. Was not using a cell phone and there was no cell phone near me or in my car when the officer pulled me over. Time on citation 11:05am.
    He didnt ask me if I was using a cell phone, only said I should use a blue tooth device next time. All I said was that I was scratching my right ear, which I was. Cop said he was parked on the corner and saw me. Phone records (original in envelope)show the last call was at 10:51am for one minute.
    He recanted the story about scratching his ear later in the thread...


    Quote Quoting LBaker
    View Post
    Umm, innocent until proven guilty?
    Yeah, OK...

    If "innocent until proven guilty" means you can maintain your innocence until the case gets past the formality of the officer testifying, then OK... I'm with you 100%. Point is, can you refute the officer's testimony? Not by simply testifying... Can you present any evidence to prove your innocence? Don't say Cell phone bill because that won't work (*Same thread I quoted above).

    You go on proclaiming your innocence...

    You should even write it on the memo part when you submit your bail amount after pleading "not guilty" (or should I say "innocent")...

    Good luck refuting the officer's testimony come trial time when it is clear that he risks nothing when testifying and therefore his testimony is worth multiples what yours is worth.

    You, on the other hand would rather be found innocent and so twisting the truth a bit isn't going to hurt anyone...

    I mean come on here, there is no victim just because I used my cell phone, right?

    Sad part is, even if you WERE in fact innocent, all of those people who managed to plead not guilty and went to court before you did, lied and were still convicted, ruined it for the rest of us!

    Quote Quoting LBaker
    View Post
    I would like to live in a country where I do not have to watch the everyday things I do simply because laws are ambiguous.
    I would like to live in a country where drivers are paying attention to the task at hand... DRIVING... Instead of worrying about which track is coming up next and whether the restaurant they're headed to a a "4 star" Zagat rating or is it a "3 star". To me, I place my life, my safety and my well being pretty high on the priority list. You, apparently have different standards, and hey, it is a free country. Only when you decide to drive on the same roads my loved ones and I are on (or even complete strangers), I respectfully ask you to pay attention, thanks in advance!

    Quote Quoting LBaker
    View Post
    Perhaps you drive a Prius and never have the need to look for a gas station in the middle of a trip...
    Perhaps you live out in the middle of nowhere, and run out of gas more often than I... Here is what I usually do, I rarely wait until I find myself on Empty in the middle of a trip, instead, when I am at about a 1/3 or a 1/4 tank, I start looking for a gas station... And I never suggested that you should lock up your phone in the trunk... Far from it, I simply suggested you set up all those matters before you leave/head out. Alternatively, and should something come up in the middle of a trip, by all means, look for a safe spot to pull over, and knock yourself out if you so wish.

    Quote Quoting LBaker
    View Post
    Thanks for your suggestion. I am hoping LEOs and people experienced with this law can shed some light on how it is interpreted/enforced, both at the law-enforcement and court level.
    We have 3 LEOs on this forum (that I know of)... One of them has already posted... The other two may do so soon... Though here is a recent post from one of them about this issue:

    Quote Quoting sniper
    View Post
    I was in court one day watching another ticket issued by an allied agency. The gentleman who was written the cell phone ticket was arguing that since he recently had his car stereo stolen, he was using his Pandora app to listen to music. That was the reason he was holding his phone close to his head (like the officer testified, it appeared he was talking on his cell phone while it was on speaker phone as he was holding the phone close to his ear).

    So the gentleman, to add credibility to his testimony, pulls out his smart phone and turns on the screen to show that Pandora is indeed an app on his phone. He pointed to the Pandora icon (like an old judge who wears glasses can see that far...) He inadvertently pressed the Pandora icon while he was pointing to it. While still holding his phone and talking about how the violation should be dismissed, Pandora was done loading and started blasting MC Hammer era rap. Gentleman fumbles (literally) the phone while trying to turn it off. He drops the phone, it bounces off the desk he’s sitting at and onto the floor. He reaches for it and after about 5 panicked, Neanderthal button pressing seconds, he gets it shut off. He then asks the judge, "Where was I at?" Judge, "Was that distracting?". Gentleman, "Yes". Judge, "Guilty".
    Still, and while I still agree that you cannot prohibit driving while distracted as an act, and even if we could, we would still have plenty of ignorant drivers on the road!

    The San Diego Sheriff along with the CHP ran a Cell phone enforcement operation in mid/late February, which netted 417 citation in one week...
    Now, did some people get trampled upon when in fact they were not truly guilty?
    I am betting yes, there were!
    Is that fair?
    If you ask me, and if they were driving while distracted, then they deserved the extra attention from the officer;
    If he opted not to believe them, that is his prerogative (he can investigate further if he chooses to, or he can simply base it all on his initial impression/observation)... "tell it to the judge", as they say...
    If they were cited and will eventually get fined then they had a hand in the final outcome! -Pun intended-


    (BTW, the article says "400 fined ....", well, you couldn't really tell if they were all fined or not at that point, I mean the citations probably had not been filed in court as of yet)!

  7. #7
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    Default Re: CVC 23123. (A) Hand Held Wireless Telephone Prohibited Use

    Quote Quoting That Guy
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    By the way, I am curious as to why you've only opted to include 23123(a) in this discussion, when in fact California law prohibits text messaging/emailing as well!!!!
    Because that's the statue under which people are getting cited for holding their cell phones.

    Quote Quoting That Guy
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    So why argue how talking on the phone should not be prohibited when you're citing "typing into and using a GPS application to look up a gas station" as an example?
    I never argued that at all, that is your misreading/assumption. I argued getting cited for HOLDING cell phones seems to be a misapplication of CVC 23123 (a).

    Quote Quoting That Guy
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    You do know that CVC 23123.5 prohibits texting/emailing while driving, correct?
    I pointed out CVC 23123.5 (and it's contradiction/redundancy if CVC 23123 (a) applies to holding cell phones) in reply 3, so a prudent reader would conclude that I am aware of of that statue.

    Quote Quoting That Guy
    View Post
    You can try and trivialize it or simplify it...
    I suppose this is debatable, but I think most would agree holding a cell phone does not require more brain power than working than a car radio.

    Quote Quoting That Guy
    View Post
    You are talking about entering (typing) info into an application, having it search for listings, then you select a listing, either read the address and be done or, more likely, elect to have the app figure out driving directions, all of which are tasks which require your attention for time periods where you should be concentrating on driving.
    Have you actually used a GPS device? It doesn't sound like you have. There are built in directories for accessing gas stations, food, etc. I can locate a list of gas stations and program the GPS to get there with a few key presses. All of this literally take seconds (< 3 seconds).

    Quote Quoting That Guy
    View Post
    If you think that an officer is prohibited from assuming that you were using your phone instead of selecting which genre of music you'd like your music player to shuffle for you that day, or that he is obligated to listen to your explanation, ot that he cannot cite for "scratching your ear", then think again, all three times, then think again... Here are 4 most recent threads discussing 23123 on this forum:
    Not going to reply here as you're making incorrect assumptions and 'straw-manning' my argument again. I am not arguing that an officer is prohibited from 'assuming' (though I would hope LEO issue citations on 'evidence' and not 'assumptions'), I am arguing this statue seem to be so ambiguous it is being used for acts (i.e. holding cell phones) which are not the intention of the law.

    Quote Quoting That Guy
    View Post
    You, on the other hand would rather be found innocent and so twisting the truth a bit isn't going to hurt anyone...

    Sad part is, even if you WERE in fact innocent, all of those people who managed to plead not guilty and went to court before you did, lied and were still convicted, ruined it for the rest of us!
    No reply here as I have not been cited. I have friends who have hence I'm posting to get clarification on this statue. BTW, your assumption that I will lie in court is frankly, insulting.

    Quote Quoting That Guy
    View Post
    I would like to live in a country where drivers are paying attention to the task at hand... DRIVING... Instead of worrying about which track is coming up next and whether the restaurant they're headed to a a "4 star" Zagat rating or is it a "3 star". To me, I place my life, my safety and my well being pretty high on the priority list. You, apparently have different standards, and hey, it is a free country. Only when you decide to drive on the same roads my loved ones and I are on (or even complete strangers), I respectfully ask you to pay attention, thanks in advance!
    Again, straw-man. There's been no studies that show holding a cell phones or working a GPS contributes significantly to driver distractions, but you are using an emotional argument to justify your own interpretation of what is 'distracted driving' (using radio/GPS) which is not agreed to by most reasonable people.

    Quote Quoting That Guy
    View Post
    I start looking for a gas station... And I never suggested that you should lock up your phone in the trunk... Far from it, I simply suggested you set up all those matters before you leave/head out.
    Really? You personally look up a list of gas stations (and memorize I presume - since reading a list of gas stations while driving WOULD be 'distracted driving') before you head out? "Set up all those matters" as you said. BTW locating nearby gas stations on a GPS (which is again completely legal by the way) is less distracting than trying to locate gas stations with only an address without a GPS.

    Quote Quoting That Guy
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    We have 3 LEOs on this forum (that I know of)... One of them has already posted... The other two may do so soon...
    I'm really hoping to hear from cdwjawa on this (I appreciate PTPD22 as well). I have enjoyed many of his well-thought-out reasoning and posts before.

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    Default Re: CVC 23123. (A) Hand Held Wireless Telephone Prohibited Use

    Quote Quoting PTPD22
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    Theoretically, you could be using the phone as a hammer to crack walnuts and still be considered "using" the phone.
    Haha .. this was a joke, yes?

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    Default Re: CVC 23123. (A) Hand Held Wireless Telephone Prohibited Use

    Common-sense and moralizing apart, and notwithstanding the fact that TG's advice is sound, the statute's ambiguity can only be resolved based on legislative history. This is the approach the only published court of appeal opinion regarding this law took (re whether it applies when talking on a phone while stopped at a red light with engine idling). IIRC the leg his will back up the purpose as being prohibiting talking/listening, not other "smart-phone" type activities.

    I will note that the above decision does qualify use as "listening", albeit as dicta:
    Quote Quoting People v. Nelson (2011) 200 Cal. App. 4th 1083, 1097
    Based on these facts, the only question that we must answer is this: Did defendant, while driving along Richmond's public roadways, violate section 23123, subdivision (a) when he used his hands to listen to a wireless telephone as he fleetingly[7] paused as required at a red traffic light?

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    Default Re: CVC 23123. (A) Hand Held Wireless Telephone Prohibited Use

    As I said in my first post, in my opinion, this is a poorly written statute. It does, in fact, leave some things open to interpretation. The case that Quirky mentions, dealing with the definition of “driving,” is just the only one that an appellate court has yet dealt with. But, the very fact that you recognize that it is open to interpretation belies your assertions that your points are “clear.”

    For example you state:

    Quote Quoting LBaker
    View Post
    Also, from the rest of the sentence ("specifically designed and configured to allow hands-free listening and talking, and is used in that manner while driving."), the rest of the statue, and the history of the law it seems pretty clear it was meant for speaking on the cell phone.
    While your interpretation is reasonable, I believe that I am also a reasonable person and I interpret it differently. I do not see that “hands-free listening and talking” can only be interpreted to mean conducting a telephone conversation. Until technology provides a means for telepathic control of electronic devices, we are stuck with either pressing buttons or voice commands. I have a new Droid phone that has an app that allows me to get directions, make a call from my contacts list, or other things, even send text messages, with voice commands. While even this is not truly “hands-free” (as I have to tap the screen to make the app ready to accept a voice command), I can tell the phone to “find the closest gas station” or “text wife, I’ll be late for dinner.” The phone will then repeat my instructions for confirmation and wait for the command “send” to complete the action. So, I can be “using” my phone by use of “hands-free (with the exception of the screen tap) listening and talking” to do things other than making a phone call. I know that iphones have a similar app. So, I believe that both of our interpretations, although contradictory, are reasonable…and, therefore, neither is “clearly” correct.

    Quote Quoting LBaker
    View Post
    I believe there are also jurisdictions where 'GPS use' has been used to dismiss the citations.
    I don’t doubt it. I also believe that yet other jurisdictions would reject that defense. Which makes my point that it is not clear. Until an appellate court publishes a decision that is on point, there will be no “clear” resolution, legally speaking.

    Quote Quoting LBaker
    View Post
    I was referring to SB 1567, which obviously implies that GPS use in vehicle is allowed.
    SB 1567 dealt specifically and narrowly with allowing a GPS unit to be mounted on a windshield. It was designed to create a narrow exception to the “obstructed view” law. Nothing in the bill states, or even implies, anything about hand-held devices. So, you are comparing apples to rocks.

    Quote Quoting LBaker
    View Post
    Also, if such broad definition of 'using a wireless telephone' is intended, there would be no need to enact CVC 23123.5 (a) two years later as texting would be covered under 23213 (a). 23123.5 (c) also specifically excludes using the 'Contacts' feature of the phone, which would also contradict 23123 (a) if interpreted in that manner.
    That is a reasonable conclusion. However, I submit that an opposite conclusion is equally reasonable. It can also be concluded that the legislature passed 23123.5 as an attempt at clarification and inclusion. They (belatedly) recognized that 23123 could be interpreted, as you do, to only mean telephone conversations and, because that was NOT what they intended, they added 23123.5. So, rather than contradicting 23123, 23123.5 can be seen as clarifying it. While I admit that such an approach would be clumsy and not effective in clarifying the legislative intent, in light of how clumsy and unclear the original bill is, such a conclusion does not seem unreasonable.

    Your specific question is about simply “holding” a cell phone…presumably, that means not using it for anything (not calls, texts, GPS, music, or whatever). That would seem to not be illegal under any of the various interpretations of the law. However, it also would raise the question of credibility. If you were not using it for anything, why be holding it at all? The very act of holding it gives pretty convincing circumstantial evidence of intent for immediate use.

    So, like Quirky says, until there are appellate decisions that are directly on point, there really is no “clear” interpretations, legally speaking. I personally think that the legislative intent was to prohibit the use period, not just voice conversations. In my opinion, it should have been worded (to achieve the intent) something like “while utilizing any device capable of communication via voice or data connection unless such device is specifically designed and configured to allow hands-free operation, and is utilized in that manner while driving.” But, that’s just me.
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