Ticket for Texting While Driving, But I Wasn't Texting

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

23123

I have my phone in a holster and whilst sat at a red light I realized it was upside down. I took it out turned it up the right way and put it back.

Cop on push bike comes over and says I was using phone. He makes me pull over and proceeds to give me ticket for "texting and using internet"

I told him I was stopped and was not talking and just turned it over in the holster. His response was he puts what he sees and the local court has a cool judge who "might believe my story" (I googled it and seems she is the opposite!).

This is my second ticket for using cell phone whilst driving. Is it worth going to court?

Thanks!

Contact your service provider, see if you can get records from the same time as your ticket. If you can then bring them to the court and show the judge that there was no use of the cell phone at that time.

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Quoting yyz0

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Contact your service provider, see if you can get records from the same time as your ticket. If you can then bring them to the court and show the judge that there was no use of the cell phone at that time.

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I don’t think this is a very good defense for a couple reasons:
1. I don’t think that the service provided will provide you with times for all your text messages and
2. Even if they did, it would only show that you didn’t text on THAT phone.
It really isn’t a great defense, but it certainly wouldn’t hurt.

So, let’s look at a different perspective. First, if the cop only wrote you for 23123, that’s not sufficient. There would need to a “.5” after it. 23123 is concerned with talking on a cell phone. But let’s assume that you were cited for 23123.5.

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.
(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.

The legislature was very narrowly specific with this statute. Maybe because it was written before smart phones became so popular. But clearly, the only thing that is illegal is “text-based communications”. So, in order to gain a conviction, the officer will have to prove the following elements of the offense:

1. You were in fact using the device
2. You were conducting text based communications with another person

For an honest judge/court, this would be a nearly impossible case to prove (unless you were dumb enough to tell the cop you were texting). According to the law, it is NOT illegal to use your cell phone for a myriad of things while driving (i.e. listen to music, play games, gps, etc.) Whether or not it is smart to do those things on your phone while driving is irrelevant… they are NOT illegal. So I could see you cross examining the cop and asking him if he is aware that there are many things that a person could do with their smart phone other than text based communications. Then you could ask him if he could testify under oath that you were in fact conducting text based communications and not a different function that is not prohibited by law. There is no way that a cop could testify to that unless he somehow was looking over your shoulder at the time.

This case should be very easy to win IF you have an honest judge/court who respects the rule of law.

If they had the statement from the cell phone provider regarding text message/call timing and then testified that it was the only phone they have or the only one that fits in that holster/case, that testimony might be persuasive. But, as Jim said, I'd be combining that defense, if appropriate, along with the line of questioning he suggests. It would be a mistake to rely ONLY on the cell phone provider records.

As to the timing on text messages, that is frequently available in the cell phone text window although one might have to go through all messages to/from all recipients to verify times. Also, this might be available online in the individual's account.

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Quoting JH2015

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This is my second ticket for using cell phone whilst driving.

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Then you should have learned not to touch your phone at all while driving.

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Quoting adjusterjack

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Then you should have learned not to touch your phone at all while driving.

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Now that us just stupid. Why would you say something like this? Is there a law that you know of that prohibits "touching" a cell phone? Or do you just make up obnoxious crap like this because you are bored?

By your stupid argument, someone could punch you in the nose and then justify it by saying, "you shouldn't have had your nose where my fist was going!"

Stupid.... just stupid.

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Quoting Jim_bo

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Now that us just stupid. Why would you say something like this? Is there a law that you know of that prohibits "touching" a cell phone? Or do you just make up obnoxious crap like this because you are bored?

By your stupid argument, someone could punch you in the nose and then justify it by saying, "you shouldn't have had your nose where my fist was going!"

Stupid.... just stupid.

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Over-react and drama llama much Jim? His point is semi-valid. If OP got busted for using their cell phone before, they should have been aware that it could happen again. The best way to avoid that situation is to not mess with the cell phone at all.

You have been here and shown the door multiple times, you KNOW how this forum is. Color commentary and snark are going to happen. Don't like it? You know where the door is.

Was this some type of holster mounted to the dash or windshield of your vehicle? You don't really specify though I assume it is since you were able to observe it being upside down. Why was its position so important?

Adjusterjack's post might not be very beneficial to the OP but his logic is spot on. There is nothing to be learned from the second kick of the mule.

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Quoting Mephis

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Was this some type of holster mounted to the dash or windshield of your vehicle? You don't really specify though I assume it is since you were able to observe it being upside down. Why was its position so important?

Adjusterjack's post might not be very beneficial to the OP but his logic is spot on. There is nothing to be learned from the second kick of the mule.

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Actually, his post might benefit the OP in the future. If the goal is minimizing traffic fines and insurance rates, his post could be very beneficial. If the goal is fair application of California Law, not so much.

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Quoting Mephis

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Adjusterjack's post might not be very beneficial to the OP but his logic is spot on. There is nothing to be learned from the second kick of the mule.

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His logic was to simply yield to corrupt cops who will charge a motorists whether the law has been violated or not. Cowering down and kissing the bootheels of such autocrats is not logical in the slightest. In fact, it only invites more abuse of authority.

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Quoting Mephis

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Adjusterjack's post might not be very beneficial to the OP but his logic is spot on. There is nothing to be learned from the second kick of the mule.

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The mule is not charged with upholding and enforcing the law.

OK in answer to questions.

The first time I got a ticket was years ago for listening to a VM and yes I learnt my lesson. That cop was very nice and explained exactly what you could and couldn't do hence I got a holster.

Why would I touch my phone at the lights when I'm stationary? Because it was upside down, because it is not illegal and because I have road directions on it.

The holster is attached to the air vent and can be expanded to fit any car.

I can get phone bills to prove I did not call. However he did write 23123 5 and wrote (text/web). As someone said, it will be hard to prove that I wasn't texting as I could have deleted the texts.

As I mentioned the cop suggested I go to court as the judge "is really cool and might believe my story" was trying to set me for failure in a big way as she is meant to be awful. He knew I wasn't texting, he was being a dick and obviously had a quota to fill. There were 2 or 3 of them on push bikes at lights just waiting to catch people. I was in the far lane and have tinted windows. Plus I did not have the phone in my hand even long enough to text. I said to him "am I not allowed to even touch my phone when stopped"? He said I had to pull over to the side of the road to do so.

A lawyer friend suggested I do trial by mail. She thought if I turn up and he turns up which she thinks he will I will lose. Particularly with this judge by the sound of it. This is not about getting out of points as there are none or even paying the money. It's about principal and what is right plus I do not want a second offense on my record for something I did not do

Your lawyer friend obviously doesn't have much confidence in the integrity of traffic court judges. Don't know that I can argue.

If it's really about the principal, then go to court and force the prosecution to prove its case beyond a reasonable doubt. And be ready to go to appeal. You are right... It IS about the principal.

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Quoting JH2015

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Particularly with this judge by the sound of it. This is not about getting out of points as there are none or even paying the money. It's about principal and what is right plus I do not want a second offense on my record for something I did not do

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Did your lawyer friend tell you that if you do TBD and lose, and then move on to Trial de Novo, assuming that judge decided your case at TBD, they CAN'T hear your case in court? Did your lawyer friend tell you that you can disqualify the first trial judge if for any reason at all (lower case lettering) you don't think they are fair using CPC 170.6, and you don't have to state the reason for your belief? Just sayin'.