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Ticket for Holding a Cell Phone, VC 23123(A)

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  • 11-14-2018, 08:05 AM
    walken
    Ticket for Holding a Cell Phone, VC 23123(A)
    My question involves a traffic ticket from the state of: California

    A month ago, I was stopped while holding a cell phone, running the maps app, into my hand, and issued a VC 23123(a) citation.

    I know this may be difficult for anyone to believe, but I was not paying any attention to my phone while driving - I had forgotten it was even in my hand. I had been looking at maps before leaving, waiting for the traffic to subdue, and had forgotten about putting the phone down before starting.

    During the stop, I showed the call log to the officer which showed I had not had any calls on that phone for the last 4 days (yes, I basically hate cell phones. it's not common for me to even carry one, usualy it stays at the office. which is why I don't have the reflex of putting it in my pocket like most people would normally do).

    I am considering to contest the ticket. VC 23123(a), which I was cited for, only covers phone calls, and as I showed the officer I was not on a call at any time during driving.

    Maybe the officer may try to reclassify the ticket as VC 23123.5(a) instead, but I am unsure if I broke that law either. VC 23123.5(a) states: "A person shall not drive a motor vehicle while holding AND OPERATING a handheld wireless telephone or an electronic wireless communications device unless [...]". What does it mean to operate a device, can you be operating it if you are not doing anything with it ? Later in VC 23123.5(c) (speaking about mounted rather than hand-held devices), "operating" seems to mean pushing buttons or tapping or flicking the screen, which I did not do at any point while driving.

    I understand it may be difficult to prove that I didn't fiddle with the phone, but my question here is about the law: if I actually didn't do anything with the device other than holding it, was I violating VC 23123.5(a) ?

    Also, is there any way I can oppose reclassifying the ticket as VC 23123.5(a), or, maybe make the point that the officer didn't charge me under it precisely because he didn't see me fiddle with my phone which is why he thought I was on a call ?
  • 11-14-2018, 08:10 AM
    PayrolGuy
    Re: VC 23123(A) - Holding a Cell Phone
    What makes you think you have to actually be calling someone.


    (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.

    You had a wireless telephone in your hand. Nowhere in the above does it mention actually making a call.
  • 11-14-2018, 08:32 AM
    walken
    Re: VC 23123(A) - Holding a Cell Phone
    People v. Spriggs (https://scholar.google.com/scholar_c...57383611460350) covers this: "We agree with Spriggs and conclude, pursuant to the rules of statutory interpretation, including our review of the language and legislative history of section 23123(a), that the Legislature intended the statute to only prohibit the use of a wireless telephone to engage in a conversation while driving unless the telephone is used in a hands-free manner." VC 23123 did not change since that judgement, though VC 23123.5 did.
  • 11-14-2018, 10:02 AM
    Mr. Knowitall
    Re: Ticket for Holding a Cell Phone, VC 23123(A)
    You can present your defense to the ticket -- you were holding it because you forgot it was in your hand -- and object to any effort to amend the ticket (should one be made). What will happen? It depends on the judge.
  • 11-14-2018, 01:13 PM
    pg1067
    Re: Ticket for Holding a Cell Phone, VC 23123(A)
    You were holding the phone with an app running. While VC 23123.5(a) doesn't contain a definition of "operating," I have a hard time believing any judge would conclude you weren't doing exactly that. You can make any arguments you like, but if I were you, I'd see if traffic school is still a possibility (wouldn't hold my breath about that either).
  • 11-14-2018, 03:32 PM
    zeljo
    Re: Ticket for Holding a Cell Phone, VC 23123(A)
    You have a good defense, go with it. Print out the People v. Spriggs and your phone records and be ready to show them to the judge. The cop can't reclassify the ticket, and the judge is very unlikely to do so. If he does, go with the "I forgot I had the phone in my hand." There's no law against just holding it in your hand and, no, you were not operating it. I'm not saying they will believe you, of course, but definitely worth a shot.
  • 12-04-2018, 02:45 AM
    acai
    Re: Ticket for Holding a Cell Phone, VC 23123(A)
    Definitely worth fighting it. If you lose, no biggie since it's a no point violation so no need for traffic school.
  • 12-04-2018, 09:05 AM
    RandallCS
    Re: Ticket for Holding a Cell Phone, VC 23123(A)
    https://www.rammount.com/blog/2017/0...ands-free-law/
    https://www.sacbee.com/news/local/tr...123126354.html


    You need to have a mounting bracket to use your cellphone in the car in CA, and there are additional restrictions. I don't think you'll be able to beat this, but as others have said, there's no legal harm in trying.
  • 12-04-2018, 09:53 AM
    RandallCS
    Re: Ticket for Holding a Cell Phone, VC 23123(A)
    Quote:

    Quoting flyingron
    View Post
    Again, the court held in Spriggs that the law says "use" and "use" means making phone calls. If the legislature meant to make merely HOLDING a phone illegal, they need to make the law say that.

    Spriggs is from 2014. It is outdated and considered to be a closed loophole.

    https://leginfo.legislature.ca.gov/f...5.&lawCode=VEH
  • 12-04-2018, 03:51 PM
    RandallCS
    Re: Ticket for Holding a Cell Phone, VC 23123(A)
    “The whole idea is you don’t have the phone in your hand, period,” said Assemblyman Bill Quirk, D-Hayward, author of the new law...
    https://www.sacbee.com/news/local/tr...123126354.html
  • 12-05-2018, 01:37 PM
    adjusterjack
    Re: Ticket for Holding a Cell Phone, VC 23123(A)
    Quote:

    Quoting walken
    View Post
    I had forgotten it was even in my hand.


    Seriously? You're going with that?

    You were steering with one hand and you have no idea what the other hand was doing, the hand that wasn't on the steering wheel? Duh.

    When are you Californian's going to learn that when your state law says "hands free" it means don't touch your phone. Period.
  • 12-05-2018, 02:23 PM
    acai
    Re: Ticket for Holding a Cell Phone, VC 23123(A)
    OP, do not let anyone here talk you out of challenging that ticket. There's no downside to fighting it in court.
  • 12-05-2018, 02:33 PM
    walken
    Re: Ticket for Holding a Cell Phone, VC 23123(A)
    Quote:

    Quoting adjusterjack
    View Post
    Seriously? You're going with that?

    You were steering with one hand and you have no idea what the other hand was doing, the hand that wasn't on the steering wheel? Duh.

    When are you Californian's going to learn that when your state law says "hands free" it means don't touch your phone. Period.

    OP here. Both hands were obviously on the wheel. It's pretty easy for me to hold a small object with two fingers while gripping the wheel between my palm and the other 3.

    Also - I do intend to proceed with this as a defense - Moving for dismissal of the VC 23123(a) charge based on Spriggs first, and if the court wants to consider VC 23123.5 instead, then testify that I did not "operate" the device. I don't need it to be a guaranteed win; I think it's worth trying as long as it's not a guaranteed loss. I am certain that I did not break the law I was cited for (Spriggs still applies as VC 23123 has not changed since). There is possible debate about VC 23123.5 depending on how one defines "operate", but I don't think I was violating that either under a reasonable definition of that word.

    One more procedural question - what is the judge's power regarding reclassifying infractions ? I thought that if anything, the prosecution would have to make the request as they are the side that brings on charges, but some comments (#6 in particular) have it the other way, which surprises me ? In other words, if the judge decides to change the charge on his own, can I object that this would be improperly acting as a prosecutor in the case ?
  • 12-05-2018, 04:27 PM
    RandallCS
    Re: Ticket for Holding a Cell Phone, VC 23123(A)
    Quote:

    Quoting acai
    View Post
    OP, do not let anyone here talk you out of challenging that ticket. There's no downside to fighting it in court.

    True. My original message was lost in the bickering.

    Quote:

    Quoting RandallCS
    View Post
    I don't think you'll be able to beat this, but as others have said, there's no legal harm in trying.

    I stand by this statement, and cannot wait to hear how it goes for you. I hope I'm wrong.
  • 12-05-2018, 05:26 PM
    Jim Kozlovich
    Re: Ticket for Holding a Cell Phone, VC 23123(A)
    Quote:

    Quoting walken
    View Post
    One more procedural question - what is the judge's power regarding reclassifying infractions ? I thought that if anything, the prosecution would have to make the request as they are the side that brings on charges, but some comments (#6 in particular) have it the other way, which surprises me ? In other words, if the judge decides to change the charge on his own, can I object that this would be improperly acting as a prosecutor in the case ?

    You are correct; no matter what anyone else says, the judge cannot legally amend the complaint (citation)on his own whereas this would be a violation of the Separation of Powers Doctrine of both the U.S. and California Constitution.
  • 12-06-2018, 07:34 PM
    Chuck77
    Re: Ticket for Holding a Cell Phone, VC 23123(A)
    "Holding" a cellphone is not "using" a cellphone, just like holding a tennis racket is not using a tennis racket.
  • 12-08-2018, 07:51 AM
    acai
    Re: Ticket for Holding a Cell Phone, VC 23123(A)
    The "prosecutor" will most likely be the cop who issued the ticket (like in my case) so I doubt they can amend the charge or even know how to do so.
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