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  1. #1
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    Default Cell Phone Violation Ticket, VC 23123

    My question involves a traffic ticket from the state of: California, I just wanted to get a second opinion about my traffic ticket and I felt I was wrongly convicted of this citation. What happened was, I work for a auto company that deliver auto parts to other shops around my area. While on the way to one of the local shop, I checked the time on my phone. Seconds later, I was pulled over by a CHP and the officer stated' " I DONT KNOW IF YOU WAS TEXTING OR CHECK THE TIME ON YOUR CELLPHONE BUT I SAW YOU GLANCING AT YOUR CELLPHONE WHILE DRIVING AND YOUR NOT SUPPOSED TO BE HOLDING ANYTHING WHILE DRIVING." I answered him by saying I was checking the time due to the fact that I needed to have parts deliver at a certain time. Then he asked me for my drivers license and car registration and came back with a ticket. His reason for citing me was because its against California law to even be holding a cellphone in one hand at any giving time and it doesn't matter if your checking the time or not.. So, im guessing we cant even check the time. However, I felt that the officer citing me was unfair and i just wanted opinion about my case. Thanks

  2. #2
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    Default Re: Cellphone Violation Ticket, VC 23123

    Here is the code section you were cited 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.

    (b) A violation of this section is an infraction punishable by a base fine of twenty dollars ($20) for a first offense and fifty dollars ($50) for each subsequent offense.

    (c) This section does not apply to a person using a wireless telephone for emergency purposes, including, but not limited to, an emergency call to a law enforcement agency, health care provider, fire department, or other emergency services agency or entity.

    (d) This section does not apply to an emergency services professional using a wireless telephone while operating an authorized emergency vehicle, as defined in Section 165, in the course and scope of his or her duties.

    (e) This section does not apply to a person driving a schoolbus or transit vehicle that is subject to Section 23125.

    (f) This section does not apply to a person while driving a motor vehicle on private property.

    (g) This section shall become operative on July 1, 2011.

    So... You're mainly focusing on subsection (a)... And the lements of the offense here are as follows:

    Where you "using a wireless telephone"? Yes.

    Is it "specifically designed and configured to allow hands-free listening and talking"? Probably designed as such but who knows if it was configured.

    Lastly, was it being used as a hands free device while driving? Not when you admitted to having it in your hand!

    You could get specific and argue that the language of the code states "used for hands free listening and talking" and you were doing neither. You were using it to check the time. However, a likely rebuttal to that is that the intent of the legislature was to keep phones from the hands of drivers in an attempt to avoid having them be distracted.

    for those who disagree with this point and are bound to suggest that people eat and put make up... The legislature obviously opted not to include those acts from being the focus of the statute.

    At any rate, if you've been to trial and have been convicted already, then your only recourse from this point is to appeal. And before you get the sales pitch about your civic duty to do so, you should know that an appeal is an agonizing process that is time consuming and trying.

  3. #3
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    Default Re: Cellphone Violation Ticket, VC 23123

    You specifically asked what our opinion was about the case... not what you should do about it. So, here's my opinion:

    Assuming that the case was as you say, the fact that you were convicted is an absolute disgrace. It is an absurd and ridiculous notion to suggest that you were looking at the time on your phone, so that means you were using the phone in your hand. It doesn't take a very smart person to see that the statute clearly intended to address talking on the phone. Given that smart phones these days have numerous functions other than a telephone function, this law is vague and difficult to enforce... unless you want to have stupid opinions like "you aren't allowed to touch your phone". Given that galactically stupid perspective, you could use your phone to swat at a fly and be guilty of the statute. Furthermore, you could not use a bluetooth headset because you could not answer the phone without using your hand. This is a case where technology has left legislative intent far behind. The legislature desperately needs to update this statute so as to clarify that cops don't write such moronic tickets in the future.

    That's my opinion.

  4. #4
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    Default Re: Cellphone Violation Ticket, VC 23123

    My apologies to John_23...

    It seems HomeAgain has lost his touch and is no longer preaching the same song and dance he always pitched. Typically, his analogy about a cell phone citation is that the cop (who cites for it) is crooked and the judge (who convicts of it) is an idiot. But that's not based on the actual events, simply his hatred for cell phone laws. He would then predict that you will lose in court, but will urge you to appeal as part of your civic duty to the citizens of the state of California (keep in mind, all of the “citizens” he had previously advised to appeal never did). Admittedly though, that was two or three personalities before the one he's claiming now. (Meaning he's been banned under 3 different screen names. So a word of caution while reading his "opinion" or his advice for that matter)!

    I'm not making ANY of this up in fact, here is a thread he started at about the time Cell phone/text messaging laws were enacted: Cell Phone Laws Are Bogus... (The language of the laws has been changed since). As you can see form the type of responses he received from the regular members here, he's on his own in left field, past the fence.... And if he ever catches a ball out there, he'll still argue that it isn't a home run. Literally!

    Example: (Note, I added the bolded part just to further qualify the manner in which the phone was used):

    Quote Quoting HomeAgain123
    View Post
    It is an absurd and ridiculous notion to suggest that you were looking at the time on your phone [while it is in your hand, obviously], so that means you were using the phone in your hand.
    UNREAL!




    Quote Quoting HomeAgain123
    View Post
    unless you want to have stupid opinions like "you aren't allowed to touch your phone". Given that galactically stupid perspective, you could use your phone to swat at a fly and be guilty of the statute.
    I'm not sure why but the way I see it, the part about using a phone to swat a fly *IS*the STUPID part but , hey... Not an issue I'd want to argue!

    Quote Quoting HomeAgain123
    View Post
    This is a case where technology has left legislative intent far behind. The legislature desperately needs to update this statute so as to clarify that cops don't write such moronic tickets in the future.
    Typical whiny Jim... You've been told many times that your suggestion would be best if you'd send it to the legislature... Then again, if they were to amend the law, you would either find different fault in it or, you would have one less thing to whine about. By the way, both Cell phone laws were last amended in 2007 & 2008 with provisions that became effective July 2011. So while there were some recent changes, none were in compliance with your requirements. Fortunately for all of us, I would think!

    And just so you'd know, I realize that it is typical of you to start name calling when you're out of answers, so I am not offended by any or all of your "stupid" inferences. Clearly, your own statements proved it is you who lacks understanding of the legal issue here.

  5. #5
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    Default Re: Cellphone Violation Ticket, VC 23123

    The best opinion I can find on this subject is People v. Nelson (2011) 200 Cal.App.4th 1083 [132 Cal. Rptr. 3d 856]. While some posters in this thread may argue that the citation is inapposite, because the court dealt mainly with the defense's argument that the law shouldn't apply to drivers who have momentarily stopped, the case sets valuable precedent in other areas too.

    First, they resolve the defense's contention, which isn't applicable here.

    Next, the court consulted legislative history and determined that the primary purpose of VC 23123 is to address the Legislature's "concerns about the public safety hazards caused by drivers' hand-held use of wireless telephones while on the public roadways..."

    The court further found that even fleeting use of a wireless device in traffic:

    [W]ould likely create hazards to themselves and public safety by their distracted use of their hands on their phones and devices, and would likely cause further traffic delays, whether it be because of a poor response to traffic issues that arise (including if they are hit by another vehicle), distracted drivers' feet letting up on brakes, the failure to promptly move as required by the traffic laws, the inability to resist the temptation to continue their fleeting use of their wireless telephone as they begin moving again, or innumerable other reasons.

    Finally, the court found that VC 23123's language didn't require the court to construe the statute narrowly because the legislative history and common sense interpretation of the law made it clear that it's the distracted use of a hand-held wireless device that the legislature is trying to regulate. While your circumstances aren't identical to the driver in this case, they're close enough that it should be difficult to persuade a court that your use of your phone wasn't also a public safety concern. In Nelson, the court was clear that the distraction caused by having your hand on your phone and your eyes off the road is part of the public safety concern that the Legislature was trying to address. You're given the legal right to file an appeal, but you'll have to convincingly rebut the argument posed by the court in Nelson: that distracted use of a cellphone, even if you aren't using it to place a call, poses a public safety hazard.

    I won't be contributing any fantasy justice league dollars to this appeal, though.

  6. #6
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    Default Re: Cellphone Violation Ticket, VC 23123

    Quote Quoting themadnorwegian
    View Post
    The best opinion I can find on this subject is People v. Nelson (2011) 200 Cal.App.4th 1083 [132 Cal. Rptr. 3d 856]. While some posters in this thread may argue that the citation is inapposite, because the court dealt mainly with the defense's argument that the law shouldn't apply to drivers who have momentarily stopped, the case sets valuable precedent in other areas too.

    First, they resolve the defense's contention, which isn't applicable here.

    Next, the court consulted legislative history and determined that the primary purpose of VC 23123 is to address the Legislature's "concerns about the public safety hazards caused by drivers' hand-held use of wireless telephones while on the public roadways..."

    The court further found that even fleeting use of a wireless device in traffic:

    [W]ould likely create hazards to themselves and public safety by their distracted use of their hands on their phones and devices, and would likely cause further traffic delays, whether it be because of a poor response to traffic issues that arise (including if they are hit by another vehicle), distracted drivers' feet letting up on brakes, the failure to promptly move as required by the traffic laws, the inability to resist the temptation to continue their fleeting use of their wireless telephone as they begin moving again, or innumerable other reasons.

    Finally, the court found that VC 23123's language didn't require the court to construe the statute narrowly because the legislative history and common sense interpretation of the law made it clear that it's the distracted use of a hand-held wireless device that the legislature is trying to regulate. While your circumstances aren't identical to the driver in this case, they're close enough that it should be difficult to persuade a court that your use of your phone wasn't also a public safety concern. In Nelson, the court was clear that the distraction caused by having your hand on your phone and your eyes off the road is part of the public safety concern that the Legislature was trying to address. You're given the legal right to file an appeal, but you'll have to convincingly rebut the argument posed by the court in Nelson: that distracted use of a cellphone, even if you aren't using it to place a call, poses a public safety hazard.
    ^This almost sounds as if its a slam dunk over those who contend that "given that smart phones these days have numerous functions other than a telephone function" and as such, checking the time or reading your horoscope should be allowed!

    And speaking of horoscopes , I wonder if that makes them "astronomically stupid" as compared to the less stupid "galactically stupid"? Or should we just call them "universally stupid" and call it a day? After all, no one could be more stupid than they are!

    Quote Quoting themadnorwegian
    View Post
    I won't be contributing any fantasy justice league dollars to this appeal, though.
    LOL... I can't say I'd blame you!

  7. #7
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    Default Re: Cellphone Violation Ticket, VC 23123

    If this were me and there were no texting or talking going on around the time of the ticket, I would request my cell phone records in order to dispute this. It's your only out. Why? Because it's the only thing that will back up your story about this.

    - - - Updated - - -

    Well, since you can be wrong, you might want to adjust the percentage for a multitude of reasons.

    He was not using the phone feature of his cell phone and it seems to me his way out would be to get copies of his records to take to the judge. No phone use and no texting around that that time = no guilt since he was neither listening/talking or texting.

    For some insight into how the court thinks about some things, please check out People v. Nelson. http://caselaw.findlaw.com/ca-court-of-appeal/1585404.html

  8. #8
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    Default Re: Cellphone Violation Ticket, VC 23123

    Am I to assume that this was directed at me?

    Quote Quoting Cherubino3
    View Post
    Well, since you can be wrong, you might want to adjust the percentage for a multitude of reasons.
    Sadly for you, you failed to get the point behind that short line and worse yet, it clearly indicates that >>I CAN be wrong<<< Yet it is your understanding that I am suggesting that I CAN'T be wrong and you signed up and signed on to tel me that?

    My percentage will stay the same for ONE MAIN REASON!

    If you were paying attention, you can clearly see that this OP was CONVICTED and the high likelihood the he was convicted simply because the intent of the statute is to prevent any sort of distraction that is caused by way of the use of a mobile device and by him doing what he did, he violated that intent and just like the many like him, he was found guilty!

    And with that being the main point I always try to present in all of these threads, you can see why my percentage isn't likely to change because of anything you can point out!

    But without that brilliant remark, I am still not impressed with the rest of your post.

    For one, your bill would not show whether you were reading a text message or an email or some form of communication that you received previously and are just getting to now or rereading it again. So that idea is already a flop!

    Two, Both, the text messaging and the wireless telephone mandate that the device be used in a hands free manner. I'm not sure how anyone can misconstrue the meaning of hands free to men you can hold it in your hand regardless of what it is you intend on doing with it! So by you taking your bill, you are essentially admitting “yes, I did have the phone in my hand and yes, I was doing something with it, but I wasn't texting or talking”, you have violated that provision of law.

    Third, just because you present the court with a phone bill that shows no activity at or around the time you were cited does not necessarily mean that you only have one cell phone account in your name. There is no way to connect the phone you were using when the officer witnessed you using it with the bill you are presenting.

    I could go on and on....

    Quote Quoting Cherubino3
    View Post
    He was not using the phone feature of his cell phone and it seems to me his way out would be to get copies of his records to take to the judge.
    Show me the language under 23123 that allows a driver to use ANY feature on a wireless phone while holding it in his/her hand all while driving.

    I'm not waiting for an answer because you will not find it anything of the sort!

    Quote Quoting Cherubino3
    View Post
    For some insight into how the court thinks about some things, please check out People v. Nelson. http://caselaw.findlaw.com/ca-court-...l/1585404.html
    Enlighten us all as to what it was that the Nelson court held or stated in support of your point that a bill is sufficient, that you can hold you phone to use it in anyway you choose while driving and that you should be immune from getting cited...

    I'm not waiting for a response on that either. And since I could not have done a better job that what TMN did in a post he made citing the Nelson case as he presented the exact opposite of what you are claiming but couldn't prove, I suggest you click on ^that^ link and read, you might learn something.

    I'm not sure what the point was behind your post because each and every point you made, clearly shows that you either don't understand the law, could not comprehend the case law you cited, or have no clue of the court rules and/or the rules of evidence!

  9. #9

    Default Re: Cellphone Violation Ticket, VC 23123

    First, case law is very unsettled regarding vc 23123 and Nelson took the defense of defining the term drive when one is stopped at a red light. Also the D in Nelson had a phone to his ear. OP merely glanced at his phone and never put it to his ear.
    Secondly, read 23123.5(c)
    "a person shall not be deemed to be writing, reading, or sending a text-based communication if the person reads, selects, or enters a telephone number or name in an electronic wireless communications device for the purpose of making
    or receiving a telephone call or if a person otherwise activates or
    deactivates a feature or function on an electronic wireless
    communications device."
    This means that you are PERMITTED to select and dial a number from your phonebook, as well as enable devices such as Bluetooth.
    Third, refer yourself to DMV website:

    Q: Are there exceptions for dialing?
    A: This law does not prohibit reading, selecting or entering a phone number, or name in an electronic wireless device for the purpose of making or receiving a phone call. Drivers are strongly urged not to enter a phone number while driving.
    http://www.dmv.ca.gov/cellularphonelaws/
    Lastly, legislature intended for the term "using" in 23123 to mean calling/listening
    IMO if the phone is not to your ear coupled with the fact that you are stopped, then it is not a safety hazard. Any other logic would suggest that you should not change your radio dial, set your in-car navigation, or eat French fries in one hand while driving.

  10. #10
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    Default Re: Cellphone Violation Ticket, VC 23123

    Just to add to the discussion, it's now official that the use of a map app on your phone while driving is illegal in the state of California as an extension of the state's current texting-while-driving ban that went into effect into 2008.

    It's based on a March ruling in a state appeals court after Steven Spriggs was cited in January 2012 by a California Highway Patrol officer who said Spriggs was looking down at the map on his phone while driving.
    The ultimate decision in the ruling said:

    Because it is undisputed that (Spriggs) used his wireless telephone while holding it in his hand as he drove his vehicle, his conduct violated Vehicle Code section 23123, subdivision (a).

    The text of the ruling can be found here: https://www.documentcloud.org/docume...-jad13-02.html

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