Driving While Using an Electronic Device or Texting

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

I don't have the exact citation number handy, so my apologies. I was cited for using an electronic device to talk or text while driving. I WON'T SUGARCOAT OR BS MY STORY.

Background:
So, I have two traffic warrants from unpaid violations over ten years ago now. I thought they were bullshit, I was young and dumb, and I was pulled over a couple times and no one ever took me in because of them, so I decided not to bother paying the exorbitant fines. At the time I was pulled over, I also had a cracked windshield and a broken (dangling) left sideview mirror.

Incident:
Driving down the road, my head was tilted downward to look at the radio dial and adjust the station. I still had view of the road and was quickly finished. Within seconds, I approached an intersection and waited at the red light to turn left. At this time, a motorcycle cop pulled in behind me. Knowing my neighborhood very well, I know the order of lights. I took the waiting time to look at my cell phone for music videos since I didn't like anything on the radio. At no time, did I have my phone above the line of sight (reasoning to come).

When the light turned green, I was set to go. I was alert and paying attention solely to the road. I didn't impede traffic whatsoever. Immediately upon entering the intersection, the officer lit me up. I pulled into a parking lot and was informed by the (nice) officer that I was pulled over for three reasons: broken mirror, broken windshield and "it looked like you were looking down at like a cell phone or something." He asked me if I was using a cell phone and I responded with, "just to look at videos." Mispoke a little, I suppose, but I was nervous.

I was cited for the citation, but didn't want to argue because he was letting me off easy. He could've taken in me in for the warrants and could've given me fix-it tickets for the windshield and mirror. Once I got the notice in the mail, I decided I wanted to fight the ticket. It counts against my record if I'm every pulled over for it again, rightly or wrongly, and the fees are ridiculous for something I didn't actually do.

Defense:
#1 I'm currently unemployed and the $160+ would inflict undue hardship. Could I argue that? That's three weeks of groceries for me...
#2 The citation number was clearly for using a cell for talking or texting while driving, which I was doing neither. The officer didn't see my cell phone until I was pulled over. If I can somehow get records from my phone company that shows I wasn't talking or texting at the time, would this be sufficient defense? What if I can't get those records? I wouldn't have any proof of defense then, is how I see it.
#3 Can I argue that while I was at the red light, I was in neutral, so I wasn't technically driving or in a driving position? I hear that's a technicality defense, but I haven't seen any supporting proof yet.
#4 Should I fib and state that I was using my phone for GPS mapping to look for a place I was interested eating at? (I was pulled over during the noon hour...) I understand the Spriggs case permits the use of maps while driving.

Can the fact that I used my cell for any purpose only at the red light and didn't cease when or after it turned green help my case at all, or is it still a violation?

Do I have a chance of beating this?

Thanks!

4.) Are you serious? Do you really think a legal board is going to tell you it's okay to go into court and LIE?

so, have you taken care of the old tickets yet? If not, you might want to take care of them asap.

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It counts against my record if I'm every pulled over for it again, rightly or wrongly, and the fees are ridiculous for something I didn't actually do.

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that statement suggests you don't learn anything from getting a ticket. Your only real concern is how much it costs you.


so, what is the specific code/statute cited?

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#2 The citation number was clearly for using a cell for talking or texting while driving, which I was doing neither. The officer didn't see my cell phone until I was pulled over. If I can somehow get records from my phone company that shows I wasn't talking or texting at the time, would this be sufficient defense? What if I can't get those records? I wouldn't have any proof of defense then, is how I see it.

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if it is the code section I suspect, take note that reading a text is a violation and that is not something you could prove with your phone records. In other words; proving you were not texting or talking at the moment is irrelevant.

as to watching videos: there is another code section that makes it illegal to watch videos while in the drivers seat.

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Quoting odindax

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#1 I'm currently unemployed and the $160+ would inflict undue hardship. Could I argue that? That's three weeks of groceries for me...

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You can "argue" it but it won't mean squat as a defense. You should have thought of the cost of getting caught breaking a handful of laws before you broke them.

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Quoting odindax

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#2 The citation number was clearly for using a cell for talking or texting while driving, which I was doing neither. The officer didn't see my cell phone until I was pulled over. If I can somehow get records from my phone company that shows I wasn't talking or texting at the time, would this be sufficient defense? What if I can't get those records? I wouldn't have any proof of defense then, is how I see it.

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Well, if you can cast doubts about the officer's credibility, especially with other evidence, you might have something there. But, bottom line, judge's tend to believe the officers and not the thousands of drivers that parade in and out of the courtroom saying they didn't do it.

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Quoting odindax

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#3 Can I argue that while I was at the red light, I was in neutral, so I wasn't technically driving or in a driving position? I hear that's a technicality defense, but I haven't seen any supporting proof yet.

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That's asinine and is guaranteed to get you found guilty.

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Quoting odindax

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#4 Should I fib and state that I was using my phone for GPS mapping to look for a place I was interested eating at?

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Yeah, lie in court, good idea. NOT.

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Quoting odindax

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Can the fact that I used my cell for any purpose only at the red light and didn't cease when or after it turned green help my case at all

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Not a bit.

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Quoting odindax

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Do I have a chance of beating this?

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Snowball's chance in hell.

Thanks for the replies. I'll take care of the old tickets the same day as this. No, I don't expect anyone to tell me to commit a crime, but no one could possibly know the difference except me. If it helps my case, and there is precedent...

No, I didn't learn anything from this experience because I think it's BS. I don't mind being lectured for something, but I wasn't actually doing anything wrong, imo. I didn't have the phone to my ear, I wasn't distracted, I wasn't texting The officer DID NOT see a phone at any time. I expect a judge to believe an officer most of the time, but that doesn't mean an officer can't be wrong.

The code is 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, unless the electronic wireless communications device is specifically designed and configured to allow voice operated and hands-free operation to dictate, send, or listen to a text-based communication, and it is used in that manner while driving.

Innocent here. Wasn't texting, period. Wasn't in motion either.

(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 or if a person otherwise activates or deactivates a feature or function on an electronic wireless communications device.

Again, innocent. I even told him what I was doing with the phone, which was none of the above.

(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.


So, I obviously got cited for the wrong thing. There is nothing in the law about looking at a phone, or holding it, or playing videos, or gps. Further, I wasn't driving at the time. I was idling at a light.

So, can I beat this thing and how can I prove it? Does the officer tell his side of the story first?

- - - Updated - - -

Side question, would anyone advise appealing to the officer who wrote the ticket? Write him a letter? Does the officer even have the power to remove the fine now?

The fees for the other tickets total around $1000. I got them, as I said, when I was young and immature. Since I always got away with not paying it, and it doesn't effect my car registration, I decided not to pay. I missed my court dates because of work, but I erred in not changing the date, if it were possible. I would love to settle those, but at a much lower cost.

One was for hopping on a commuter train that arrived 10 minutes early. Had I missed that, I would've missed job training and been let go. It was a government contract job and I had no car at the time. Tickets weren't sold onboard. I wanted to appeal to the judge, but missed it and then let it go when the fees went up as protest.

The second was for using a discounted ticket on BART which I wasn't entitled to. I had to connect from the train to BART and then skate to the office, but I didn't have any income during training so I wanted to save a few bucks. Having to use both transports added up quickly and training was every day for six weeks.

At this point, it's over ten years ago and I just don't think about them. Cops will inform me that I have them, but I can leave the country, register my car and everything else without bother, so why should I care? $1,000 off violations of a few bucks is ridiculous in my view, regardless if I am guilty. Hopefully, the judge will lower the fines.

so, your defense to the charge is you weren't reading nor writing a text because you were watching music videos. Sounds like a winner to me.

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There is nothing in the law about looking at a phone, or holding it, or playing videos, or gps

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not the gps but depending on what you are doing with the phone, specifically there is and there is definitely a law against watching videos.

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Further, I wasn't driving at the time. I was idling at a light.

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you have two choices here. You were either driving or you were parked. Do you really want to argue you were illegally parked in the middle of the road? Waiting at a light is considered to be part of driving so yes, you were driving.

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I didn't have the phone to my ear,

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not a requirement of the law charged nor the one dealing with having a video screen within your sight.

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I wasn't distracted,

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the state does not have to prove this for the charge to be valid

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I wasn't texting

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and the point is?

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The officer DID NOT see a phone at any time.

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but you did tell him this:

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He asked me if I was using a cell phone and I responded with, "just to look at videos."

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so you confessed to not a breach of the law cited but of another law.

Yes, but my point is, whether or not there is a violation for videos or not, I wasn't in violation of THIS code. That's the argument. I provided the full text for California's code and it's restricted only to texting. There is no mention of using the electronic device for another purpose.

I'm going to walk into court and state that I was cited for this, I wasn't doing it, here are my records that prove it. If talk of videos is raised, I simply state I wasn't cited for it. I'm not in court for a citation I didn't receive, and I shouldn't be punished for it by upholding this fine.

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odindax;804819]Yes, but my point is, whether or not there is a violation for videos or not, I wasn't in violation of THIS code.

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and that's great.


now for act II:

your defense to the amended charge, should they do so. You did admit to violating another code section. It isn't wise to admit violating one code as a defense to what you are charged with.

That's the argument. I provided the full text for California's code and it's restricted only to texting. There is no mention of using the electronic device for another purpose.

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I'm going to walk into court and state that I was cited for this, I wasn't doing it, here are my records that prove it.

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your records do not prove diddly squat. I can read a text on my phone that was sent to me months ago. There would be no record with my carrier of me reading it yet it is still a violation of the law.

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If talk of videos is raised, I simply state I wasn't cited for it. I'm not in court for a citation I didn't receive, and I shouldn't be punished for it by upholding this fine.

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but they can amend a charge. Whether they do or not is another issue. Do you think they have to cite you on the spot for a violation? Wow, if that was the case, think of all the murderers that the police didn't witness the crime and arrest them on the scene. I guess they should all be released from prison, right?

I understand your points, and thank you for your feedback.

While I did violate another section of the code, it seems, and I only say that because I don't know which one it is, it sucks that I can't fight to remove this violation for which I'm actually innocent. It seems it's guilty until proven innocent, and I hate to face the bias of the court on top of that. I'm sure the judge will take the cop's word over mine, but he was just operating on an assumption that is incorrect. I know a lot of people want to get out of tickets, but I'm the kind of person that would accept this fine if it were true and accurate.

I'm writing here because I want advice. I've gotten some, but there seems to be no answer to it without admitting guilt of another violation. If I have records that prove I didn't receive or send texts at the time, that might help my case. I don't see how it could hurt and would only support my position. I know it doesn't prove I wasn't reading, but I don't see how I can prove a negative either. If the cop is honest and says he didn't see me actually handling a phone, wouldn't it just become my word at that point, which would mean that guilt can't be proven? The cop is only operating on assumption, and there's plenty of "distractions" that could cause me to look downward, like tuning the radio (which I was doing).

It just seems like it's impossible to get out of, and the best I can hope for is the cop not showing up. Lectures are one thing, but I need actual advice on how I might approach this case to get out of the citation I'm actually innocent of without admitting guilt. Anyone?

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If I have records that prove I didn't receive or send texts at the time, that might help my case. I don't see how it could hurt and would only support my position.

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because it does not prove anything regarding the law charged.

Your biggest problem is you admitted to the cop you were looking at music videos. If not for that, I think you could win the case. Given you admitted to a violation, then you have the problem of how to get out of what you are charged with and not end up with the other violation. Since you already admitted to what you were doing (looking at music videos), I really don't see a way out of everything.

Hang around though. There are a couple whiz kids that like dealing with traffic tickets. Maybe they will have something to help you.

There are no great answers here, especially since the OP admitted to committing a different infraction. I'd suggest that the OP take care of his outstanding tickets before going to court for the current round. The last thing that you'd want to have happen is to get held in custody on any of the outstanding warrants.

CVC 27602 covers the driver of a vehicle watching television or other video. The fine for that is $234, but the fine for the texting ticket is only $160. While there's no guarantee that the officer will refile the ticket if the OP beats the 23123.5 in court, there's also nothing to stop that from happening. Additionally, the not guilty plea will require that bail be posted for the entire set of infractions on the ticket -- it sounded like there were some equipment violations too. If money is short, that's another aspect to consider.

I agree with those who have already posted about the cellphone records: they're not exculpatory. It's possible to break 23123.5 without sending a SMS message. This is a case of the OPs word against the officer's word.

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Quoting odindax

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but no one could possibly know the difference except me.

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Except for that officer that heard you tell him you were watching videos....

If he remembers that and it comes out in court, you lose. And if you think $160 is exorbitant, what do you think those two 10 year old tickets are going to run you?

Thank you for the recent replies, guys. They were very helpful and straightforward. Didn't feel judged either. I appreciate getting it straight, as it'll prepare me.

The cop was nice, and I know he definitely helped me out for not writing the fix it tickets or taking me in for the warrants. I'm glad someone put it in perspective, because I had no idea that the other infraction is a lot more. Now, I only said "videos," I'm sure. I doubt I could stretch that to GPS mapping video. I read online today that said courts can write up people for being at a red light and using their phones such I had.

At this point, it might better to eat it, if I can be cited for something after being let go. I'm going to traffic court, not criminal, so the idea of pleading my position to a judge and being fined for something not witnessed seems strange to me, but I'm not a lawyer or anything.

Questions:
1) No one answered it, that I've noticed, but what about pleading with the cop? Financial trouble is a real deal...

2) How likely is it for a judge to throw out the case if I admitted learning from the experience and pleading financial hardship (with bank statements)? Accepting responsibility always seems to be favorable...

3) If I don't get the previous warrants taken care of before going in, what are my chances of being detained? As I understand the bench warrants, they are for needing to appear before a judge in traffic court. If I go in for all three cases at once, should these remove the warrants for the two cases? Just need to make sure they're on the docket...

4) What's the likelihood of getting fines reduced or removed for the two warrant cases due to financial hardship?

5) Are there any alternatives to paying fine or any money, such as community service? I'm not eligible for traffic school for any of the three cases...

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Now, I only said "videos," I'm sure. I doubt I could stretch that to GPS mapping video.

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gps videos? Not very believable to me.

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1) No one answered it, that I've noticed, but what about pleading with the cop? Financial trouble is a real deal...

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he already gave you a break. On top of that, if it is like most places I am aware of, once a ticket is written, it takes an act of God to change it, or a judge, whichever you see first.

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2) How likely is it for a judge to throw out the case if I admitted learning from the experience and pleading financial hardship (with bank statements)? Accepting responsibility always seems to be favorable...

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extremely unlikely.

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4) What's the likelihood of getting fines reduced or removed for the two warrant cases due to financial hardship?

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doubtful especially given they are ten years old. I suspect a judge suggest you had plenty of time to save up the money to pay those debts.

Fair enough... Thank you.