Speeding Ticket for Simply Holding a Cell Phone in Los Angeles

I held a cell phone in my right hand (looking at a map) and may have been tapping on it with my thumb. The policeman said the only safe speed for holding a cell phone was 0 mph. The only listed offense was 22350, the California basic speed law. I was not accused of exceeding the speed limit or told how fast I was going.

On this forum I see people like me charged with violating 23123: https://www.dmv.ca.gov/pubs/vctop/d11/vc23123.htm That official state link says the ticket for this violation is only $20, but the court clerk said this type of ticket is about $180. Can anybody explain this? :confused: The court took $238 from me.

And then there is this: http://www.mercurynews.com/crime-cou...-while-driving
An appeals court this year said it was OK to hold a cell phone and look at a map, that did not violate the law. :)

So I'm going to court on this. How should I prepare?

VC 22350 is the section used when someone is traveling at an unsafe speed for conditions. It is also used as a distracted driver statute - particularly in southern California. The officer is likely to argue that you were distracted by your phone and looking down at it steadily or sufficiently that he believed you were not paying proper and safe attention to the roadway or conditions. He will have his say, you will have yours, and the judge/commissioner will make the decision.

While VC 23123 may not apply to using the phone as a map, if you were distracted by your phone or other device, then it is arguable that you were traveling at an unsafe speed for conditions. The only SAFE speed to be staring at something other than the roadway is 0 MPH.

The first thing you should do is fill out From TR 205 and take it to the court clerk to see if it can be accepted. If you are convicted at TBD, you will have a chance to return to court for Trial de Novo. If the court accepts your TBD, you'll effectively be requiring the officer to prove the case twice.

CVC 22350 refers to a speed which endangers persons or property. If there were other drivers going the same speed and you were within the posted speed limit, the speed is not the problem...the distraction is the problem. If there is a general distracted driving prohibition that's the correct section to cite. Connecticut, for example, has a general distracted driving statute. If California does not, the legislature can fix that. It's totally inappropriate for a motorist to be cited regarding a speed law when the real problem is distraction. If the courts let them do that...I guess people get the government they deserve.

If you cite the appeals court decision (if it's not published, you might not get away with that) then you have a good argument.

Spriggs dealt with VC 23123 and its applicability to using the phone as a GPS, NOT with 22350 for the same reason. VC 23123 is a poorly crafted section, in my opinion, as it was outdated even by the time it was enacted into law given the many functions a phone has and a lack of any definition as to what included "hands free" operation. Is having it on speaker "hands free"? Blue tooth? Connecting via cable or blue tooth to the car's internal radio or phone augment system?

VC 22350 will require the officer to articulate WHY the action was unsafe. If he or she can show that the driver was staring at the phone and not at the road for a second or so, then it is very likely that he can show this to be sufficiently valid for a conviction. VC 22350 as a distracted driver statutes has been used successfully and without successful appellate challenge for several years in southern California. As I hard it, it was first used by the CHP out of Ventura, I believe, and caught on after a couple of years. The CHP has migrated this north and officers in other jurisdictions have adopted it as well. Since there appears to be no successful challenge of the use of this section for distracted drivers, I guess the definition covers activity that keeps the driver from paying proper attention to the activity of driving.

VC 22350 ... No person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or property.

It seems a reasonable and prudent speed to be staring at a device in your hand would be zero MPH. In other words, parked - or, at least stopped at a light.

cdwjava, thanks for your reply that indicates to me you probably know what you are talking about. Since I'm likely to lose in court, what should I do now? I understand if I don't show up then nothing else happens, right? They already have $238. I'm thinking of going to court anyway on the chance that the policeman fails to appear. I don't want to have to pay any more money, so what can I do now to not pay any more money?

The facts are somewhat different, as is the state (New Jersey), but this appellate case involves a very interesting (and successful) defense to a cell phone traffic ticket where the defendant was not using the phone to speak: http://law.justia.com/cases/new-jers...76-09-opn.html

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Quoting NoHo1

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cdwjava, thanks for your reply that indicates to me you probably know what you are talking about. Since I'm likely to lose in court, what should I do now? I understand if I don't show up then nothing else happens, right? They already have $238. I'm thinking of going to court anyway on the chance that the policeman fails to appear. I don't want to have to pay any more money, so what can I do now to not pay any more money?

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If you do not show up you might also be hit with a failure to appear. However, if you are eligible for traffic school, you can appear, plead guilty or no contest and receive the option of traffic school and not have the point on your license.

Yes, you might also schedule the matter for trial and hope the officer doesn't show. If he does show, most courts will give you the option of traffic school if you still plead out before a trial.

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Quoting The Legal Seagull

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The facts are somewhat different, as is the state (New Jersey), but this appellate case involves a very interesting (and successful) defense to a cell phone traffic ticket where the defendant was not using the phone to speak: http://law.justia.com/cases/new-jers...76-09-opn.html

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It's not even close to speed statute. The defense in the NJ case concerned the depressing of the buttons of the phone and how that did not equate to using the phone in violation of a NJ statute. I don't see how it would be of any help to the OP even if it were from CA or even the same federal circuit.

cdwjava, thanks for your advice. I'm wondering if I will kow if the officer made it to court before I have to make the decision as to whether to plead guilty before the trial. I remember seeing people in the L.A. traffic court corridor paying ahead of time at a separate window. It was not the room with the judge in it. I was in the hallway waiting as a juror, I've never been in traffic court before.

Going to traffic school costs more money, so I'd like ot find out if having a single point on my record is going to cost me more than that in increased insurance costs.

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Quoting NoHo1

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cdwjava, thanks for your advice. I'm wondering if I will kow if the officer made it to court before I have to make the decision as to whether to plead guilty before the trial.

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In the courts I am familiar with they call the role and then the clerk or even the judge/commissioner will make the announcement that any who are eligible and wish to do so can plead guilty and get traffic school. You might be able to check out the court's practice by attending a hearing or two before your court date.

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Going to traffic school costs more money, so I'd like ot find out if having a single point on my record is going to cost me more than that in increased insurance costs.

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The fines are a one-shot deal AND an increase in insurance for up to 3 years. The small amount you pay for traffic school is generally made up for in savings. But, you can always call your insurance company and ask them their policy on citations. I WILL tell you that when my wife got a point for a collision, it bumped our rates noticeably for three years. Not a lot, but well over the $75 or so it would cost for traffic school had that been an option for a collision she was at fault for.

Any officer who uses 22350 to cite a motorist using a cell phone should be ashamed of himself or herself, regardless of how successful the technique has been in the past or how many courts have upheld related violations. "No person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or property." The statute obviously refers to road conditions and excessive vehicle speed considering such conditions. In the case of distracted driving (including certain uses of cell phones) the speed is not the issue, the distraction is. If there isn't a distraction statute, the Legislature can fix that. (Haven't I read exhortations here before that drivers who don't like the law should set about the process of changing it?) If the cell phone statute is poorly written, and it is, the Legislature can fix that. This is exactly the sort of nonsense that reduces the confidence of average citizens in the justice system. "Traffic rules account for most of the contact by average citizens with law enforcement and the courts. Enforcement of laws which are widely perceived as unreasonable and unfair generates disrespect and even contempt toward those who make and enforce those laws."
The Appellate Department, People vs. Goulet