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Cell Phone Violation Ticket, VC 23123

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  • 03-15-2013, 04:33 PM
    John_23
    Cell Phone Violation Ticket, VC 23123
    My question involves a traffic ticket from the state of: California, I just wanted to get a second opinion about my traffic ticket and I felt I was wrongly convicted of this citation. What happened was, I work for a auto company that deliver auto parts to other shops around my area. While on the way to one of the local shop, I checked the time on my phone. Seconds later, I was pulled over by a CHP and the officer stated' " I DONT KNOW IF YOU WAS TEXTING OR CHECK THE TIME ON YOUR CELLPHONE BUT I SAW YOU GLANCING AT YOUR CELLPHONE WHILE DRIVING AND YOUR NOT SUPPOSED TO BE HOLDING ANYTHING WHILE DRIVING." I answered him by saying I was checking the time due to the fact that I needed to have parts deliver at a certain time. Then he asked me for my drivers license and car registration and came back with a ticket. His reason for citing me was because its against California law to even be holding a cellphone in one hand at any giving time and it doesn't matter if your checking the time or not.. So, im guessing we cant even check the time. However, I felt that the officer citing me was unfair and i just wanted opinion about my case. Thanks
  • 03-15-2013, 06:53 PM
    That Guy
    Re: Cellphone Violation Ticket, VC 23123
    Here is the code section you were cited for:

    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... You're mainly focusing on subsection (a)... And the lements of the offense here are as follows:

    Where you "using a wireless telephone"? Yes.

    Is it "specifically designed and configured to allow hands-free listening and talking"? Probably designed as such but who knows if it was configured.

    Lastly, was it being used as a hands free device while driving? Not when you admitted to having it in your hand!

    You could get specific and argue that the language of the code states "used for hands free listening and talking" and you were doing neither. You were using it to check the time. However, a likely rebuttal to that is that the intent of the legislature was to keep phones from the hands of drivers in an attempt to avoid having them be distracted.

    for those who disagree with this point and are bound to suggest that people eat and put make up... The legislature obviously opted not to include those acts from being the focus of the statute.

    At any rate, if you've been to trial and have been convicted already, then your only recourse from this point is to appeal. And before you get the sales pitch about your civic duty to do so, you should know that an appeal is an agonizing process that is time consuming and trying.
  • 03-15-2013, 11:45 PM
    HomeAgain123
    Re: Cellphone Violation Ticket, VC 23123
    You specifically asked what our opinion was about the case... not what you should do about it. So, here's my opinion:

    Assuming that the case was as you say, the fact that you were convicted is an absolute disgrace. It is an absurd and ridiculous notion to suggest that you were looking at the time on your phone, so that means you were using the phone in your hand. It doesn't take a very smart person to see that the statute clearly intended to address talking on the phone. Given that smart phones these days have numerous functions other than a telephone function, this law is vague and difficult to enforce... unless you want to have stupid opinions like "you aren't allowed to touch your phone". Given that galactically stupid perspective, you could use your phone to swat at a fly and be guilty of the statute. Furthermore, you could not use a bluetooth headset because you could not answer the phone without using your hand. This is a case where technology has left legislative intent far behind. The legislature desperately needs to update this statute so as to clarify that cops don't write such moronic tickets in the future.

    That's my opinion.
  • 03-17-2013, 04:03 PM
    That Guy
    Re: Cellphone Violation Ticket, VC 23123
    My apologies to John_23...

    It seems HomeAgain has lost his touch and is no longer preaching the same song and dance he always pitched. Typically, his analogy about a cell phone citation is that the cop (who cites for it) is crooked and the judge (who convicts of it) is an idiot. But that's not based on the actual events, simply his hatred for cell phone laws. He would then predict that you will lose in court, but will urge you to appeal as part of your civic duty to the citizens of the state of California (keep in mind, all of the “citizens” he had previously advised to appeal never did). Admittedly though, that was two or three personalities before the one he's claiming now. (Meaning he's been banned under 3 different screen names. So a word of caution while reading his "opinion" or his advice for that matter)!

    I'm not making ANY of this up in fact, here is a thread he started at about the time Cell phone/text messaging laws were enacted: Cell Phone Laws Are Bogus... (The language of the laws has been changed since). As you can see form the type of responses he received from the regular members here, he's on his own in left field, past the fence.... And if he ever catches a ball out there, he'll still argue that it isn't a home run. Literally!

    Example: (Note, I added the bolded part just to further qualify the manner in which the phone was used):

    Quote:

    Quoting HomeAgain123
    View Post
    It is an absurd and ridiculous notion to suggest that you were looking at the time on your phone [while it is in your hand, obviously], so that means you were using the phone in your hand.

    UNREAL!




    Quote:

    Quoting HomeAgain123
    View Post
    unless you want to have stupid opinions like "you aren't allowed to touch your phone". Given that galactically stupid perspective, you could use your phone to swat at a fly and be guilty of the statute.

    I'm not sure why but the way I see it, the part about using a phone to swat a fly *IS*the STUPID part but , hey... Not an issue I'd want to argue!

    Quote:

    Quoting HomeAgain123
    View Post
    This is a case where technology has left legislative intent far behind. The legislature desperately needs to update this statute so as to clarify that cops don't write such moronic tickets in the future.

    Typical whiny Jim... You've been told many times that your suggestion would be best if you'd send it to the legislature... Then again, if they were to amend the law, you would either find different fault in it or, you would have one less thing to whine about. By the way, both Cell phone laws were last amended in 2007 & 2008 with provisions that became effective July 2011. So while there were some recent changes, none were in compliance with your requirements. Fortunately for all of us, I would think!

    And just so you'd know, I realize that it is typical of you to start name calling when you're out of answers, so I am not offended by any or all of your "stupid" inferences. Clearly, your own statements proved it is you who lacks understanding of the legal issue here.
  • 03-17-2013, 05:47 PM
    themadnorwegian
    Re: Cellphone Violation Ticket, VC 23123
    The best opinion I can find on this subject is People v. Nelson (2011) 200 Cal.App.4th 1083 [132 Cal. Rptr. 3d 856]. While some posters in this thread may argue that the citation is inapposite, because the court dealt mainly with the defense's argument that the law shouldn't apply to drivers who have momentarily stopped, the case sets valuable precedent in other areas too.

    First, they resolve the defense's contention, which isn't applicable here.

    Next, the court consulted legislative history and determined that the primary purpose of VC 23123 is to address the Legislature's "concerns about the public safety hazards caused by drivers' hand-held use of wireless telephones while on the public roadways..."

    The court further found that even fleeting use of a wireless device in traffic:

    [W]ould likely create hazards to themselves and public safety by their distracted use of their hands on their phones and devices, and would likely cause further traffic delays, whether it be because of a poor response to traffic issues that arise (including if they are hit by another vehicle), distracted drivers' feet letting up on brakes, the failure to promptly move as required by the traffic laws, the inability to resist the temptation to continue their fleeting use of their wireless telephone as they begin moving again, or innumerable other reasons.

    Finally, the court found that VC 23123's language didn't require the court to construe the statute narrowly because the legislative history and common sense interpretation of the law made it clear that it's the distracted use of a hand-held wireless device that the legislature is trying to regulate. While your circumstances aren't identical to the driver in this case, they're close enough that it should be difficult to persuade a court that your use of your phone wasn't also a public safety concern. In Nelson, the court was clear that the distraction caused by having your hand on your phone and your eyes off the road is part of the public safety concern that the Legislature was trying to address. You're given the legal right to file an appeal, but you'll have to convincingly rebut the argument posed by the court in Nelson: that distracted use of a cellphone, even if you aren't using it to place a call, poses a public safety hazard.

    I won't be contributing any fantasy justice league dollars to this appeal, though.
  • 03-17-2013, 10:21 PM
    That Guy
    Re: Cellphone Violation Ticket, VC 23123
    Quote:

    Quoting themadnorwegian
    View Post
    The best opinion I can find on this subject is People v. Nelson (2011) 200 Cal.App.4th 1083 [132 Cal. Rptr. 3d 856]. While some posters in this thread may argue that the citation is inapposite, because the court dealt mainly with the defense's argument that the law shouldn't apply to drivers who have momentarily stopped, the case sets valuable precedent in other areas too.

    First, they resolve the defense's contention, which isn't applicable here.

    Next, the court consulted legislative history and determined that the primary purpose of VC 23123 is to address the Legislature's "concerns about the public safety hazards caused by drivers' hand-held use of wireless telephones while on the public roadways..."

    The court further found that even fleeting use of a wireless device in traffic:

    [W]ould likely create hazards to themselves and public safety by their distracted use of their hands on their phones and devices, and would likely cause further traffic delays, whether it be because of a poor response to traffic issues that arise (including if they are hit by another vehicle), distracted drivers' feet letting up on brakes, the failure to promptly move as required by the traffic laws, the inability to resist the temptation to continue their fleeting use of their wireless telephone as they begin moving again, or innumerable other reasons.

    Finally, the court found that VC 23123's language didn't require the court to construe the statute narrowly because the legislative history and common sense interpretation of the law made it clear that it's the distracted use of a hand-held wireless device that the legislature is trying to regulate. While your circumstances aren't identical to the driver in this case, they're close enough that it should be difficult to persuade a court that your use of your phone wasn't also a public safety concern. In Nelson, the court was clear that the distraction caused by having your hand on your phone and your eyes off the road is part of the public safety concern that the Legislature was trying to address. You're given the legal right to file an appeal, but you'll have to convincingly rebut the argument posed by the court in Nelson: that distracted use of a cellphone, even if you aren't using it to place a call, poses a public safety hazard.

    ^This almost sounds as if its a slam dunk over those who contend that "given that smart phones these days have numerous functions other than a telephone function" and as such, checking the time or reading your horoscope should be allowed!

    And speaking of horoscopes :topsy_turvy:, I wonder if that makes them "astronomically stupid" as compared to the less stupid "galactically stupid"? Or should we just call them "universally stupid" and call it a day? After all, no one could be more stupid than they are!

    Quote:

    Quoting themadnorwegian
    View Post
    I won't be contributing any fantasy justice league dollars to this appeal, though.

    LOL... I can't say I'd blame you!
  • 03-17-2013, 11:47 PM
    themadnorwegian
    Re: Cellphone Violation Ticket, VC 23123
    Quote:

    Quoting That Guy
    View Post
    And speaking of horoscopes :topsy_turvy:, I wonder if that makes them "astronomically stupid" as compared to the less stupid "galactically stupid"? Or should we just call them "universally stupid" and call it a day? After all, no one could be more stupid than they are!

    Heh, I do enjoy the outer space metaphors. It does make you wonder when he's going to get beamed up to the mothership. Though, I'd imagine that the tin foil hat would interfere with intergalactic communication. "Universally stupid" is a good one, but does this mean that their stupidity is expanding just like the universe? :saturn:
  • 03-18-2013, 01:57 PM
    HomeAgain123
    Re: Cellphone Violation Ticket, VC 23123
    Just as I thought. The OP asked for an opinion… I offered an opinion and the ad hominems start to fly from the tag team of TG/TMN.

    First of all, I was not addressing my opinions of cell phone laws in general… I was addressing my opinion of the OP’s case. And my opinion is on point as opposed other “opinions”. It is clear that the OP was convicted of using a cell phone when he was not using a cell phone.

    Case in point: and iPod touch looks like an iPhone. It has similar functions (with respect to music playback), similar controls, similar size, etc. But clearly one could NOT be convicted of 23123 for using one because it simply is NOT a phone! Now, replace that iPod touch with an iPhone and the “opinions” seem to be that a person could be convicted of violating 23123 for operating the iPod function of the iPhone (which is functionally identical to the iPod touch) simply because there is a cell phone function resident on the iPhone. Similarly, the OP could have picked up a watch, or a clock, or a number of time-telling devices in order to determine the time of day and it CLEARLY would not have been a violation of 23123. But, since the OP looked at the clock on his cell phone, the opinion seems to be that became inherently unsafe!! I think it would merely be a statement of the obvious to point out that this clearly was NOT the legislature’s intent. The legislature could have easily made it a violation to use ANY handheld electronic device… but they didn’t their intent in 23123 was to address cell phone…. PERIOD!! Furthermore, when they decided to broaden 23123 by passing 23123.5 (no texting law), they made it perfectly obvious that they recognized that there can be multiple functions on one hand held device and that they did NOT intend to restrict ALL functions. They also made it clear that separate functions shod be addressed by separate statutes. They clearly wanted to restrict ONLY the cell phone and texting. Period!

    This opinion is exactly on point. It does not go off into irrelevant tangents based on unrelated threads and speculations about motive. I do appreciate TMN’s attempt to bring in actual case law, but unfortunately, the case law that he cites is NOT on point. Nelson cites a case where the driver was using his cell phone as a wireless telephone… an action that is clearly restricted by 23123. I am saying that using a non-wireless telephone function on a handheld device is NOT a violation of 23123…. Whether there is a cell phone function on the device or not. And, given the fact that these laws are relatively new, there is no case law that is on point. However, claims that these opinions would be best sent to the legislature are misplaced as the legislature has made themselves clear. They intended to restrict ONLY the wireless telephone and texting functions of handheld devices. The legislature has already spoken on this issue… so taking the issue to them would be moot.

    Again, this is my point about the OP’s conviction. It is limited in scope to answer the question the OP asked. It stays on point and does not wander in to tangents or ad hominems. If the OP was only looking for opinions… he has them. If the OP would like to follow through with a request for recommendations on what he should do with these opinions… I’d be more than happy to provide that as well.
  • 03-18-2013, 03:36 PM
    supralover23
    Re: Cellphone Violation Ticket, VC 23123
    Quote:

    Quoting HomeAgain123
    View Post
    Just as I thought. The OP asked for an opinion… I offered an opinion and the ad hominems start to fly from the tag team of TG/TMN.

    First of all, I was not addressing my opinions of cell phone laws in general… I was addressing my opinion of the OP’s case. And my opinion is on point as opposed other “opinions”. It is clear that the OP was convicted of using a cell phone when he was not using a cell phone.

    Case in point: and iPod touch looks like an iPhone. It has similar functions (with respect to music playback), similar controls, similar size, etc. But clearly one could NOT be convicted of 23123 for using one because it simply is NOT a phone! Now, replace that iPod touch with an iPhone and the “opinions” seem to be that a person could be convicted of violating 23123 for operating the iPod function of the iPhone (which is functionally identical to the iPod touch) simply because there is a cell phone function resident on the iPhone. Similarly, the OP could have picked up a watch, or a clock, or a number of time-telling devices in order to determine the time of day and it CLEARLY would not have been a violation of 23123. But, since the OP looked at the clock on his cell phone, the opinion seems to be that became inherently unsafe!! I think it would merely be a statement of the obvious to point out that this clearly was NOT the legislature’s intent. The legislature could have easily made it a violation to use ANY handheld electronic device… but they didn’t their intent in 23123 was to address cell phone…. PERIOD!! Furthermore, when they decided to broaden 23123 by passing 23123.5 (no texting law), they made it perfectly obvious that they recognized that there can be multiple functions on one hand held device and that they did NOT intend to restrict ALL functions. They also made it clear that separate functions shod be addressed by separate statutes. They clearly wanted to restrict ONLY the cell phone and texting. Period!

    This opinion is exactly on point. It does not go off into irrelevant tangents based on unrelated threads and speculations about motive. I do appreciate TMN’s attempt to bring in actual case law, but unfortunately, the case law that he cites is NOT on point. Nelson cites a case where the driver was using his cell phone as a wireless telephone… an action that is clearly restricted by 23123. I am saying that using a non-wireless telephone function on a handheld device is NOT a violation of 23123…. Whether there is a cell phone function on the device or not. And, given the fact that these laws are relatively new, there is no case law that is on point. However, claims that these opinions would be best sent to the legislature are misplaced as the legislature has made themselves clear. They intended to restrict ONLY the wireless telephone and texting functions of handheld devices. The legislature has already spoken on this issue… so taking the issue to them would be moot.

    Again, this is my point about the OP’s conviction. It is limited in scope to answer the question the OP asked. It stays on point and does not wander in to tangents or ad hominems. If the OP was only looking for opinions… he has them. If the OP would like to follow through with a request for recommendations on what he should do with these opinions… I’d be more than happy to provide that as well.

    Reductio ad absurdum, that logic means that a driver could be playing Angry Birds on their iTouch while driving, and LEOs could not do anything about it, because they weren't using a wireless telephone. While that would be the case according to the exact letter of the law, hopefully we can agree that that's not the intent of the legislature?

    In the OP's specific case, 23123 states "shall not drive a motor vehicle while using a wireless telephone, unless that telephone is configured for hands-free listening and talking, and is used in that manner while driving."

    So now we go to the dictionary for the definition of 'use': "Take, hold, or deploy (something) as a means of accomplishing a purpose or achieving a result; employ."

    The OP took/held (take your pick) the wireless telephone as a means of checking the time (accomplishing a purpose or achieving a result), and has therefore violated 23123.
  • 03-18-2013, 07:54 PM
    HomeAgain123
    Re: Cellphone Violation Ticket, VC 23123
    Quote:

    Quoting supralover23
    View Post
    Reductio ad absurdum, that logic means that a driver could be playing Angry Birds on their iTouch while driving, and LEOs could not do anything about it, because they weren't using a wireless telephone. While that would be the case according to the exact letter of the law, hopefully we can agree that that's not the intent of the legislature?

    I am not saying that there is NOTHING that an LEO could do about a person playing angry birds on their iTouch while driving... but I AM saying that this would NOT be a violation of VC23123. Period!! Furthermore, the point that the CA legislature took the effort to write two separate statutes to restrict two separate functions normally found on one handheld device indicates that it is very clear that they intended to limit ONLY those two functions. CA doesn't have a distracted driving statute. Unfortunately, that means that these statutes don't allow a LEO to do anything about a person eating a hamburger, putting on lipstick, reading a map, reading a book, sleeping, etc. Those acts are NOT specifically illegal under the CA vehicle code. If this triggers your sense of outrage, I'm sorry. But being angry doesn't make something illegal that isn't illegal.


    Quote:

    In the OP's specific case, 23123 states "shall not drive a motor vehicle while using a wireless telephone, unless that telephone is configured for hands-free listening and talking, and is used in that manner while driving."

    So now we go to the dictionary for the definition of 'use': "Take, hold, or deploy (something) as a means of accomplishing a purpose or achieving a result; employ."

    The OP took/held (take your pick) the wireless telephone as a means of checking the time (accomplishing a purpose or achieving a result), and has therefore violated 23123.

    No one is questioning the definition of the word "using". However, I am questioning the definition of the word "wireless telephone". The OP simply was NOT using a wireless telephone. He was using a clock.
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