Cell Phone Use While on Speakerphone

[astolate]

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

Pulled over while using a cell phone with speakerphone function on, cell phone was not in hand but inside the door handle. Officer said he noticed no one in the vehicle and talking without a Bluetooth or other device when asked about talking with the speakerphone on he said it doesn't matter still counts as distracted driving. This ticket is for "cellphone use" (this is what is written on it) and not "careless driving" just wanted to clarify that since there wasn't an option for cell phone use and the officer said the ticket was for distracted driving I thought it was the same.

I was planning on contesting this in court because according to the CA DMV website for Cell Phone Law FAQ (http://dmv.ca.gov/cellularphonelaws/) it says:

"Q: Does the “hands-free” law allow you to use the speaker phone function of your wireless telephone while driving?
A: Yes, as long as you are not holding the phone. "

Therefore no ticket should have been issued and I don't think this officer knew the law properly. Also the same website states that:

"Q: Are there exceptions for dialing?
A: This law does not prohibit reading, selecting or entering a phone number, or name in an electronic wireless device for the purpose of making or receiving a phone call. Drivers are strongly urged not to enter a phone number while driving."

so wouldn't that mean that even if he saw me dialing or ending the call since the actual "use" of the phone it wasn't in hand then it doesn't matter.

Any advice?

[Mr. Knowitall]

You posted that you're charged with careless driving - in which case it wasn't your use of the phone that was the issue, it was your inability to control your vehicle, whatever the cause.

[astolate]

no the ticket states "cell phone use" - sorry I didn't see an option for that so I just picked careless driving, but the actual citation was for cell phone use and not careless driving. Since the officer refered to it as "distracted driving" I thought careless driving would be the same, but I guess it makes a big difference from what is actually written on the ticket. Sorry for the confusion.

[That Guy]

So which code section NUMBER were you cited for?

[astolate]

V C Section 23123 Hand Held Wireless Telephone Prohibited Use. This law is also cited at the top of the page I linked from the DMV for FAQ on it (http://dmv.ca.gov/cellularphonelaws/ in case you missed it up top).

[That Guy]

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Before the edit:

V C Section 23123 Hand Held Wireless Telephone Prohibited Use. the only cell phone use law in CA.

No its not... Clearly you missed 23123.5 which also applies to "cell phone use" if you want to get technical.

V C Section 23123 Hand Held Wireless Telephone Prohibited Use. This law is also cited at the top of the page I linked from the DMV for FAQ on it (http://dmv.ca.gov/cellularphonelaws/ in case you missed it up top).

Lay off the attitude. and remember, you're the one here asking for help... Free help!

You'll see why your DMV reference is meaningless in a bit:

Pulled over while using a cell phone with speakerphone function on, cell phone was not in hand but inside the door handle.

You can actually hear and be heard on your phone with it being in the door handle? What kind of phone do you have?

Also the same website states that:

"Q: Are there exceptions for dialing?
A: This law does not prohibit reading, selecting or entering a phone number, or name in an electronic wireless device for the purpose of making or receiving a phone call. Drivers are strongly urged not to enter a phone number while driving."

so wouldn't that mean that even if he saw me dialing or ending the call since the actual "use" of the phone it wasn't in hand then it doesn't matter.

Why did you feel you had to include this part if the first part and the answer you provided would be sufficient to get the citation dismissed?

Are you worried that he might have seen you talking with the phone in your had before you put it in the door handle and you're looking to verify if that is a correct interpretation?

I will say this: without knowing exactly what the officer stated in full, its hard to determine whether he misunderstood the law or whether you misunderstood what he said!

Let me try and put things in proper perspective... While I cannot dispute the general definitions you offered, it should be made clear that neither the DMV nor the CHP are the authority on interpreting the law. Sure they have to have a certain understanding of the vehicle code, that is their bread and butter so to speak, and yet there are times where the DMV or the CHP will interpret the law in a certain way, an individual or an entity will disagree and the matter is then brought before a court to decide. Even then, there are times where the trial court may issue a ruling or an opinion, where one party might disagree, at which point they can appeal to the appellate division -a higher court than the trial court- for a determination on whether the lower court erred or not. And so on until it gets to the state supreme court.

With that being said, you were cited for VC 23123:

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.

(b) A violation of this section is an infraction punishable by a base fine of twenty dollars ($20) for a first offense and fifty dollars ($50) for each subsequent offense.

(c) This section does not apply to a person using a wireless telephone for emergency purposes, including, but not limited to, an emergency call to a law enforcement agency, health care provider, fire department, or other emergency services agency or entity.

(d) This section does not apply to an emergency services professional using a wireless telephone while operating an authorized emergency vehicle, as defined in Section 165, in the course and scope of his or her duties.

(e) This section does not apply to a person driving a schoolbus or transit vehicle that is subject to Section 23125.

(f) This section does not apply to a person while driving a motor vehicle on private property.

(g) This section shall become operative on July 1, 2011.

So where is that provision that allows you to dial a number? You're not going to find it there!

Instead, you will find it under 23123.5 which prohibits texting or more specifically, "writing, sending or reading a text-based communication" meaning using an electronic wireless communications device to manually communicate with any person using a text-based communication, including, but not limited to, communications referred to as a text message, instant message, or electronic mail.

So what? What does that mean?

23123.5.

(a) A person shall not drive a motor vehicle while using an electronic wireless communications device to write, send, or read a text-based communication.

(b) As used in this section "write, send, or read a text-based communication" means using an electronic wireless communications device to manually communicate with any person using a text-based communication, including, but not limited to, communications referred to as a text message, instant message, or electronic mail.

(c) For purposes of this section, a person shall not be deemed to be writing, reading, or sending a text-based communication if the person reads, selects, or enters a telephone number or name in an electronic wireless communications device for the purpose of making or receiving a telephone call.

(d) A violation of this section is an infraction punishable by a base fine of twenty dollars ($20) for a first offense and fifty dollars ($50) for each subsequent offense.

(e) This section does not apply to an emergency services professional using an electronic wireless communications device while operating an authorized emergency vehicle, as defined in Section 165, in the course and scope of his or her duties.

Well, I'm sure you can see it already... Subsection (c) is the subsection you're speaking of as giving the exclusion you described. However, subsection (c) is worded in a way -"for purposes of this section"- where it only applies to citations issued in violation that particular code section -i.e. 23123.5 VC-, which prohibits text messaging. So if you're caught typing into your phone, you get pulled over, and are told you're going to get cited for text messaging, or are in fact cited for text messaging, you can use the excuse that you were not typing a text message, instead, you were typing someone's name to dial their number. Would it work for you under said circumstances? I don't know but who cares about that... Its not what we're discussing!

What we are in fact discussing is a citation for 23123, and it's likely to work to get you out of a 23123 VC citation which clearly states that the device must be used (no specific description of which stage of usage the law applies to means it conclusively applies to all stages) as a hands free device, meaning just that. If you cannot dial without holding the device, if you get pulled over and are cited, there is no excuse for you violating the hands free provision.

In this case, the officer clearly saw you talking... If he had previously or subsequently seen you holding the phone in your hand, whether it be to dial, to bring the phone closer to your mouth/ear, or to hang up, then you were not using it as a hands free device and therefore you are guilty of the charge.

[astolate]

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Before the edit:



No its not... Clearly you missed 23123.5 which also applies to "cell phone use" if you want to get technical.

I was under the assumption that 23123.5 was just an addition to the law regarding texting not that it was an entirely different one. My mistake.

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Lay off the attitude. and remember, you're the one here asking for help... Free help!

I don't see how you interpretted that as "attitude" - I simply wanted to point out the link in case you missed it since that FAQ is what I plan to base my entire defense on.

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You can actually hear and be heard on your phone with it being in the door handle? What kind of phone do you have?

He didn't say he could hear me talking just that he could apparently "see" me talking
Edit* I misread that, I have 2 phones that I use one is a Samsung generic flip phone the other is a HTC HD7, both have speakerphones loud enough to hear and be heard when placed in the door handle (my car has a cup like thing there so it prevents it from falling). I typically use my bluetooth headset with them but it was acting funny so I opted to just use speaker phone instead.

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Why did you feel you had to include this part if the first part and the answer you provided would be sufficient to get the citation dismissed?

Are you worried that he might have seen you talking with the phone in your had before you put it in the door handle and you're looking to verify if that is a correct interpretation?

Only because when he pulled me over I reached over and ended the call, when asked if I was on the cell phone I told him yes but it was on speakerphone which I was under the impression was totally legal.

I appreciate you taking the time to clarify the law, I still think I'll take my chances and let a judge decide.

[That Guy]

I was under the assumption that 23123.5 was just an addition to the law regarding texting not that it was an entirely different one. My mistake.

Actually, they were enacted separately.. I don't remember which came first...

I don't see how you interpretted that as "attitude" - ...

A difference of opinion. Skip it!

He didn't say he could hear me talking just that he could apparently "see" me talking

Never suggested the office could hear you talking... I was referring to you and the person on the other end of the line. Meaning?: does your phone have a good speakerphone and microphone where both parties on the line could hear clearly.

Only because when he pulled me over I reached over and ended the call

That alone is where it ceased to be a "hands free operation". That alone makes you guilty! It might be silly but the law is clear on that part!

when asked if I was on the cell phone I told him yes but it was on speakerphone which I was under the impression was totally legal.

Not when you have to use your hands to activate it/end it... etc. There are no provisions under the law that allow for that!

I appreciate you taking the time to clarify the law, I still think I'll take my chances and let a judge decide.

No problem... You're free to do as you please, good luck!

[astolate]

Another question, since it says

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.

it only specifies "listening and talking" in 23123 and if a cell phones speaker phone function allows it to be considered a "telephone configured for hands free use" it also doesn't say anything about hands-free dialing, answering, and ending a call. So couldn't one argue that ending a call isn't violating the law because the telephone is configured properly and is being used properly since it only specifies hands-free for "listening and talking"? Maybe I'm grasping as straws here..... but I'd assume this is why they added in texting law because so many people claimed hands on the phone was actually texting not calling.

[lostintime]

CA really must be the only state where the public isn't scared of challenging citations.