California Cell Phone Ticket, Moving Cell Phone

[Buddy Hinton]

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

Got ticket 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.

The story: Cell phone was in my shirt pocket. While driving, I moved it to passenger seat. More specifically, I: (i) removed from my breast pocket; (ii) then held phone in hand while also gripping steering wheel (for maybe 10 seconds, a minute at most, don't know exactly); and (iii) then transferred to other hand and put cell phone down on passengers seat. Made no calls, received none (I never do when driving). I wasn't holding the phone particularly close to my mouth or my ear at any time -- no closer than my breast pocket (where the cell phone started its journey to the passenger seat) or the 10 o clock position on my steering wheel (where my phone stopped for a brief rest along the way).

Proposed defense: I am considering contesting based on the argument that moving the cell phone from my pocket to passenger's seat is not "using a wireless telephone" for purposes of this law. Is this a good defense or not?

[tigerdog]

It makes sense to me, because I would say it's no different than taking a pen out of your pocket and moving it to the passenger seat. However, I'm not the judge. I think it would probably help you to have a detailed history from your cell provider showing no calls, texts, etc...at that time.

[davidmcbeth3]

You will need your cell phone records showing your activity (or non-activity in your case). You'll win, usually.

[greenmancan]

It would seem completely logical that your defense along with a sell phone record would be proof.However I'm sure you already know logic and the law don't always mix.
There could be a dash video that may or may not help prove your case,but that's probably a long shot.I don't know the procedure in Ca. to request preservation but I know it can get erased if you wait to long.
In Florida we can call the officers supervisor,who is the only one with the keys to the black box.I just have to ask them to preserve for possible future litigation.They will burn the tape on a CD from which they can copy the portion you requested.

[davidmcbeth3]

always plead insanity .. say you voted for obama ...