Hand Held Wireless Telephone, Prohibited Use, CVC 23123(A)

Here's the other, more practical side: how is YOUR judge going to interpret 23123? From my limited experience, all in southern CA, a majority of traffic court judges will dismiss if shown that the phone was being held in the hand for a non-phone-call/non-text purpose. Examples I've seen dismissed in court include GPS, "checking the time", changing songs, "battery out so connecting to car charger", etc.

It obviously helps if the officer will back up your story, i.e. that you told him/her at the time of citation that you were NOT calling/talking/listening.

It would be a good idea to go to traffic court and see how YOUR judge handles 23123 cases/excuses...

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Quoting PTPD22

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But, the very fact that you recognize that it is open to interpretation belies your assertions that your points are “clear.”

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Actually, I wrote that before I've had a chance research the statue (and probably to be amicable to opposing views). I would say today after researching further and looking into the law and interpretations by the DMV and CHP that I don't believe the broad interpretation is correct.

The DMV and CHP explanations of the law warn drivers against non hands-free cell phone usage, but mention nothing about non-phone usage besides texting. Publicized CHP enforcement efforts have solely been based on actual phoning and texting usage.

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Quoting PTPD22

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Nothing in the bill states, or even implies, anything about hand-held devices. So, you are comparing apples to rocks.

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Actually WE are debating apples to rocks :) My original assertion ("Many phones can also function as GPS navigation devices, which is clearly allowed by law.") was concerning GPS devices only, not hand-held devices in general.

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Quoting PTPD22

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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.

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But if that is the intend, they would do so by modifying the definition under 23123(a). Clarifying by adding 23123.5 have an opposite effect. Such uses as GPS, music, non-texting apps went unmentioned when they could be added, thus making them presumably not illegal.

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Quoting PTPD22

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The very act of holding it gives pretty convincing circumstantial evidence of intent for immediate use.

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True, but many of those immediate uses are not illegal (dialing (mentioned on the DMV site and 23123.5), GPS, music use, etc. Citing a person based on circumstantial evidence of immediate (and very possibly legal) use seems unjustified to me.

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Quoting PTPD22

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So, like Quirky says, until there are appellate decisions that are directly on point, there really is no “clear” interpretations, legally speaking.

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Agreed. But the case Quirky cited seem to define the statue as talk-based.

What I find appalling is that many drivers are getting cited, fined ($160), and DMV driving recorded by what may turn out to be legal uses of their cell phones after all. Frankly, if there are questions about the applicability of a law, then enforcement should be delayed until the applicability is resolved, for justice's sake.

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Quoting LBaker

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I would say today after researching further and looking into the law and interpretations by the DMV and CHP that I don't believe the broad interpretation is correct.

The DMV and CHP explanations of the law warn drivers against non hands-free cell phone usage, but mention nothing about non-phone usage besides texting.

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Since the statute in question is neither a DMV nor a CHP regulation, their explanations have little legal effect, other than weak support for your proposition. If the language of a statute is clear, that is how it will be interpreted --- as a rule. If it's not, courts will usually resort to legislative history (the goal being to "effectuate the intent of the law as passed"). Sometimes they will look at sister-state statutes/decisions. If you want to find support, I suggest you start with those two sources, which are available on leginfo.ca.gov and Google Scholar, respectively.

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Quoting LBaker

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But if that is the intend, they would do so by modifying the definition under 23123(a). Clarifying by adding 23123.5 would have an opposite effect. Such uses as GPS, music, non-texting apps went unmentioned and presumably not illegal.

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That's a good start towards construing the law in your favor!

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Quoting LBaker

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...and DMV driving recorded...

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VC 23123 violations carry NO MOVING POINTS. They do not affect your driving record, just your wallet.

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Fascinating as this discussion is, I must ask: do you have a specific situation you're looking for advice on, or are we just shooting the breeze? I, for one, would appreciate a clarification so I know what priority to give this thread...

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Quoting quirkyquark

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It would be a good idea to go to traffic court and see how YOUR judge handles 23123 cases/excuses...

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I don't have 'a judge', as I have not been fortunate enough to be cited for this. It seems however the statue is interpreted differently from jurisdiction to jurisdiction, even judge to judge. What a nice law to allow since flexibility in enforcement/conviction!

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Quoting quirkyquark

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Since the statute in question is neither a DMV nor a CHP regulation, their explanations have little legal effect, other than weak support for your proposition. If the language of a statute is clear, that is how it will be interpreted --- as a rule.

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Well, that is sorta the point - DMV and CHP are interpreting the statue as actual phone use only. BTW I'm not asking on only legal grounds, but also on law-enforcement interpretations.

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Quoting quirkyquark

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They do not affect your driving record

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Not true. Per the DMV's FAQ (question 7):

Q: Will the conviction appear on my driving record?
A: Yes, but the violation point will not be added.

Obviously it's not a legal document but I presume it's based on legal grounds.

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Quoting quirkyquark

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Fascinating as this discussion is, I must ask: do you have a specific situation you're looking for advice on, or are we just shooting the breeze? I, for one, would appreciate a clarification so I know what priority to give this thread...

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I am mainly asking from a preventive and public education angle, but I believe you've already answered my question from the legal side of things, for which I thank you.

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Quoting LBaker

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Frankly, if there are questions about the applicability of a law, then enforcement should be delayed until the applicability is resolved, for justice's sake.

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In a utopian world it would be...but, in the real world we live in, such an approach is neither practical nor, arguably, desired. If there were a requirement that all "questions about the applicability of a law" be resolved before implementation, then every law would have to be preemptively reviewed by both the State Supreme Court and SCOTUS...and there would have to be a unanimous decision in both...before a law could be enforced. As one example, a couple of years ago, SCOTUS made a ruling in Arizona v Gant that reversed over 30 years of well established and accepted law regarding when and how police may search incident to an arrest. In appellate court decisions, unanimity is the exception and divided courts are the rule. Appellate courts regularly over-rule trial courts and supreme courts regularly over-rule appellate courts (very regularly if we are talking about the 9th circus). That means that, even among very well educated, experienced, reasonable, and expert judges, dissention regarding "questions about the applicability of a law" are commonplace. Resolving all such questions prior to implementing a law would, effectively, result in anarchy as no law could ever be implemented. To quote (or, more likely paraphrase) some dead guy or other, "Our system of justice is the worst there is...except for all the others."

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Quoting PTPD22

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To quote (or, more likely paraphrase) some dead guy or other, "Our system of justice is the worst there is...except for all the others."

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LOL thanks for making me laugh!

Rather than go through this thread only to point out how clearly ignorant and obtuse you are, it is my pleasure that I am still able to provide you with as much clarity as humanly possible. I can't say this will suffice in your case, but in the slight chance that anyone will come across this thread in the future, this is hoping they aren't misguided by your clear and unmistakable invalid opinion:

California Bans Use of Cell Phone GPS While Driving