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  1. #1
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    Jul 2012
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    Default Cell Use Citation, but I Was Not Using My Cell Phone at All. VC 23123(A)

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

    I was cited yesterday at 1655pm for VC 23123(a) - Cell Use

    I am thinking about fighting this ticket by use of Trial by Written Declaration but want to get some opinions here if possible. First off, I was not using my cell phone and I can pull the call logs from my service provider to prove it. This is what I was intending on using as my statement:

    CA 23123(a) - Hand Held Wireless Telephone Prohibited Use

    This California Vehicle Code specifically states:
    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.

    On July 30, 2012 @ approximately 1655PM, I was approached by a Chula Vista PD officer on Olympic Parkway and Winding Walk Street while fully stopped at a red light. While stopped at this red light, I had reached for my device to plug it into my vehicles car charger as my battery was low and placed it on my lap. The officer asked me what I was doing as he pulled up next to me and I told him that I was charging my phone. The officer refused to believe me about 2.5-3 feet away from my driver side door on his PD motorcycle. I told him that I simply plugged the charger into my device and placed my device on my lap all while stopped at a red light and not while in motion. I tried to explain this to the officer but he insisted I was using my wireless telephone. He asked me again what I was doing and again, I told him I simply plugged in my charger my device, which is exactly what I was doing. The officer then turned on his lights and told me to pull over. He walked to my driver side window and stated that he could have just let me go with a warning as he had a long day and does not want/like to write tickets on his way home after a long day of hearing excuses all day but since I did not admit to using my phone, he would be citing me with a ticket and next time I should just tell the truth. He then asked me for my license and registration, which I provided. I even offered to show the officer my device for all recent call logs and even my text logs and swore that I was not using my wireless telephone but he refused to even look or hear me out. The officer issued me a traffic ticket for the following violation of 23123(a) which he signed off with his signature declared under penalty of perjury under the laws of the State of California the foregoing is true and correct: 23123 (a) cv - cell use

    I have included a copy of my AT&T cell phone bill which clearly indicates that on 07/30/2012 at 1655pm, I dod not make or receive any phone calls and proves that I was not in violation of VC 23123(a) - cell use as cited by the officer. The last phone call I received before the citation was at 442pm and lasted exactly 54 seconds while I was at RCR Smog in Spring Valley. As one can clearly see per my AT&T Wireless phone call records, I was not using my wireless telephone at the approximate time that the officer falsely accused me of doing so per Vehicle Code 23123 (a) and again, the officer declared under penalty of perjury under the laws of the State of California the foregoing was true and correct. If the officer indeed knew that I was using my wireless telephone, why did he ask what I was doing multiple times if it was clear to him that I was using my wireless phone not configured to allow hands-free listening and talking, and used in that manner while driving? The officer may have thought I was using my wireless telephone in that manner but I was not and I was at a red light, not in motion as seen on the citation as speed equals 0. I applaud every law enforcement officer for the job they do each and everyday as it is a very dangerous and difficult job to do but I cannot accept fault nor guilt if I am innocent of the charge cited against me. This is why I have filed this Trial by Written Declaration as the officer citing me with this traffic citation made a judgement error on issuing this citation for 23123(a) which clearly states 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.

    I have provided proof by submitting records of my phone call logs along with my statements on this Trial by Written Declaration in order to request that this citation be fully dismissed.

    -----END----

    What do you all think I should do? Should I fight it or should I just pay the fine? I just don't like the fact of being accused of a crime I did not commit. Thanks in advance!!!

    Oh, the officer also said that he will be doing me a favor by citing me for 23123(a) - Cell Use instead of texting (23123.5). I don't know if this helps my case at all. Either way, I was violating either vehicle code...please help!

  2. #2
    Join Date
    Jan 2006
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    38,867

    Default Re: Cell Use Citation, but I Was Not Using My Cell Phone at All. VC 23123(A)

    I was not using my wireless telephone at the approximate time

    that's what will prevent your defense from being successful.


    It will boil down to what the cop testifies to. If he did not see you using your phone, there is nothing to convict you. If he testifies he saw you using your phone, you will lose.

    the suggestion at the end sounds like he believes you were texting. The problem; if you were writing a text and deleted it, of course it wouldn't show up on your records but it is just as illegal as if you sent it.


    but I was not and I was at a red light, not in motion
    so, you were using your phone but you believe that since you were not moving, it isn't a violation?

  3. #3
    Join Date
    Jul 2012
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    2

    Default Re: Cell Use Citation, but I Was Not Using My Cell Phone at All. VC 23123(A)

    Quote Quoting jk
    View Post
    that's what will prevent your defense from being successful.


    It will boil down to what the cop testifies to. If he did not see you using your phone, there is nothing to convict you. If he testifies he saw you using your phone, you will lose.

    the suggestion at the end sounds like he believes you were texting. The problem; if you were writing a text and deleted it, of course it wouldn't show up on your records but it is just as illegal as if you sent it.


    so, you were using your phone but you believe that since you were not moving, it isn't a violation?
    But if he thought I was texting, shouldn't he have charged me with 23123.5? Aren't these two separate laws? I appreciate the reply. I guess I should reword some of my statement??? Point is, I was not using my phone for communication of any kind but simply inserting my charger into my device at a stop light. Is that against the law as well and would this be consider using a wireless device without a hands free configuration? If my ticket dates I was cited for 23123(a), can they legally change the ticket from VC 23123(a) to VC 23123.5(a)??? If I have proof that no calls were made or in transmission at the time of citation, will his 'word' stand in court versus an actual cell phone bill stating no calls were made nor received? So basically, the officer can lie and say he saw me using/talking on my phone and case closed? If so, that certainly sucks...

    - - - Updated - - -

    I took a closer look at my citation/ticket and noticed that the officer noted my vehicle as being a 2000 model Honda Accord. The thing is, my Honda Accord is a 1997 model (I know its old but I cannot justify buying a new car and paying a monthly payment on a new car if this one works just fine). It also looks like the officer may have wrote down the wrong license plate number on the citation as well. My license plate ends in 53 and his writing appears to be 55 for what he wrote down. Could I emphasize that if this police officer could make a mistake as to note the wrong information on my citation when he clearly has all of my information in his hands, that he too could have made a mistake on his judgement call when citing me with this ticket? If the final decision is based on the officers good judgement and precise details of the situation, how can anyone be so sure if the officer actually saw me using the phone if he cannot even document accurate information on a citation? Do you think this would fly on the Trial by Written Declaration or should I just show up in court and plead my case? I would not necessarily be loosing money as I would be taking the day off (PTO) but I am also a government employee so either way you look at it, money will be wasted both on my end, the governments end, and on the tax payers end. Rather than having me do my job and manage the projects I am responsible for, I will be wasting a day or two trying to get this ticket dismissed. Taking time off to do this will cost the tax payers more than me paying the fine in general...its a lose, lose situation if you ask me.

  4. #4
    Join Date
    Mar 2009
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    LA LA Land
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    9,170

    Default Re: Cell Use Citation, but I Was Not Using My Cell Phone at All. VC 23123(A)

    Let me start by saying that you being at a red light has zero affect on whether you were "driving" or not.

    You can read this case: People v. Nelson (2011) 200 Cal.App.4th 1083, 1097-1098.

    Quote Quoting RyanMichael
    View Post
    But if he thought I was texting, shouldn't he have charged me with 23123.5? Aren't these two separate laws?
    That is a different law.

    Quote Quoting RyanMichael
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    Point is, I was not using my phone for communication of any kind but simply inserting my charger into my device at a stop light. Is that against the law as well and would this be consider using a wireless device without a hands free configuration?
    The law states the (1) your device must be configured for hand free listening and talking, and it must be used "in that manner" (i.e. hands free - meaning without touching it at all) while driving (which we've ^already established^ you were driving).

    Quote Quoting RyanMichael
    View Post
    If my ticket dates I was cited for 23123(a), can they legally change the ticket from VC 23123(a) to VC 23123.5(a)??? If I have proof that no calls were made or in transmission at the time of citation, will his 'word' stand in court versus an actual cell phone bill stating no calls were made nor received?
    Texting and on an active call are not the only prohibited actions. Prohibited actions, and with as fully featured as some phones can be these days are countless. Instead, it is easier to list the allowable actions: The law only allows for two actions while driving: (1) hands free listening, and (2) hands free talking. The officer witnessed you "manipulating" your phone while driving. You were doing something else with your phone and it certainly was not hands free listening nor was it hands free talking.

    And by the way, "manipulating your phone" is indeed a cause for a traffic stop; the officer pulled you over and you admitted to manipulating your phone by acting in a manner that is not consistent with the exceptions under the law (i.e. "hand free listening and talking".

    See this case regarding "manipulating": People v. Calderon - Cal: Court of Appeal, 2nd Appellate Dist., 8th Div., 2012

    Quote Quoting RyanMichael
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    So basically, the officer can lie and say he saw me using/talking on my phone and case closed? If so, that certainly sucks...
    As long as you using is not hands free, he was correct in citing and if that sucks, then it sucks!

    Quote Quoting RyanMichael
    View Post
    I took a closer look at my citation/ticket and noticed that the officer noted my vehicle as being a 2000 model Honda Accord. The thing is, my Honda Accord is a 1997 model (I know its old but I cannot justify buying a new car and paying a monthly payment on a new car if this one works just fine). It also looks like the officer may have wrote down the wrong license plate number on the citation as well. My license plate ends in 53 and his writing appears to be 55 for what he wrote down. Could I emphasize that if this police officer could make a mistake as to note the wrong information on my citation when he clearly has all of my information in his hands, that he too could have made a mistake on his judgement call when citing me with this ticket? If the final decision is based on the officers good judgement and precise details of the situation, how can anyone be so sure if the officer actually saw me using the phone if he cannot even document accurate information on a citation?
    The only difference is that his writing of the year of your car and your plate number, he knew those are items that are not relevant to the validity of your citation. They present zero obstacle to you being able to present a defense and in addition, neither the model car you drive nor your plate number have an impact on whether you truly committed the violation or not. That makes both of those what is commonly referred to as "harmless error"... If you insist, the court can enter a correction on the record but it will have zero impact on your case.

    But that is not it, in this case, and even if the officer was careless in his observation, your statements during the stop further confirmed his suspicions and provided more basis and validity to the citation.

    Quote Quoting RyanMichael
    View Post
    I would not necessarily be loosing money as I would be taking the day off (PTO) but I am also a government employee so either way you look at it, money will be wasted both on my end, the governments end, and on the tax payers end. Rather than having me do my job and manage the projects I am responsible for, I will be wasting a day or two trying to get this ticket dismissed. Taking time off to do this will cost the tax payers more than me paying the fine in general...its a lose, lose situation if you ask me.
    Nice try... But are you suggesting you're never ever going to take a PTO day off? And aren't PTO days off a "use it (by a certain date) or lose it proposition"? Meaning you earn them and use them within a certain period or you lose them at some point! So whether you take a PTO off to handle this matter in court or take it to stay at home and count how many times a ceiling fan will rotate in a 12 hour period, it will still be the same cost to the tax payer... I've learned that they can often be very forgiving!

    Good luck with the citation!

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