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  1. #1
    Join Date
    Apr 2013
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    Default Ticketed for a Cell Phone Violation While on a Speeding Ticket Deferral

    My question involves a traffic ticket from the state of: WA, King County

    I have a deferred speeding ticket from less than a year ago and just received a citation for driving while using a cell phone (RCW 46.61.667). It says that this citation will not be reported to the Department of Licensing or my insurance company.

    Will this citation violate my deferral?

  2. #2
    Join Date
    Mar 2010
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    Snohomish, WA
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    Default Re: Cell Phone Citation Violate Speeding Deferral (Wa)

    If the court imposed a timeframe to remain free from convictions of any moving violations as part of the conditions of granting the deferral then unfortunately, the answer is yes. It is a moving violation. It will not go on your driving record, but will trigger the deferral default. Had it been a nonmoving violation, then no.

    -unless I am way off the mark-

    In which county and court did you take the deferral?

  3. #3
    Join Date
    Feb 2010
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    1,383

    Default Re: Cell Phone Citation Violate Speeding Deferral (Wa)

    Just a little off the mark. Under WAC 308-104-160, using your cell phone while driving is not a moving violation and will not affect your deferral. You can just pay it if you want.

    I would still say file for a deferral. The law is written so vaguely that the officer has to say it was up to your ear and was not in the "hands-free mode." Subsection 4 of the statute says that being on speakerphone is not a violation of this statute. If you were on speakerphone and just trying to hear better you have an affirmative defense.

  4. #4
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    Default Re: Cell Phone Citation Violate Speeding Deferral (Wa)

    Quote Quoting BrendanjKeegan
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    I would still say file for a deferral. The law is written so vaguely that the officer has to say it was up to your ear and was not in the "hands-free mode." Subsection 4 of the statute says that being on speakerphone is not a violation of this statute. If you were on speakerphone and just trying to hear better you have an affirmative defense.
    Huh? Do you mean file for a contested hearing?

  5. #5
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    Default Re: Cell Phone Citation Violate Speeding Deferral (Wa)

    Meant to say discovery. It's been a long week.

  6. #6
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    Default Re: Cell Phone Citation Violate Speeding Deferral (Wa)

    ETA: Disregard my post below...

    It turns out RCW 46.61.667 states that a conviction of a cell phone violation shall NOT become a part of the driver's record under either RCW 46.52.101 or 46.52.120...



    I may be way off here and I am sure Barry will blurt out a short line to shut me down, but I'll still take a stab...

    Quote Quoting BrendanjKeegan
    View Post
    Under WAC 308-104-160, using your cell phone while driving is not a moving violation and will not affect your deferral. You can just pay it if you want.
    I am not finding any language in WAC 308-104-160 that mentions a deferral. It does indeed state that: "For purposes of RCW 46.20.2891, 46.65.020..." (both of which define "moving violation" and "habitual offender" respectively) then it goes on to describe its impact and effect.

    That said, i think I might side with Speedy on this one since this is what I could find:

    A "deferral" is described under RCW 46.63.070, specifically, paragraph (5):

    RCW 46.63.070(5)

    (a) Except as provided in (b), (c), and (d) of this subsection, in hearings conducted pursuant to subsections (3) and (4) of this section, the court may defer findings, or in a hearing to explain mitigating circumstances may defer entry of its order, for up to one year and impose conditions upon the defendant the court deems appropriate. Upon deferring findings, the court may assess costs as the court deems appropriate for administrative processing. If at the end of the deferral period the defendant has met all conditions and has not been determined to have committed another traffic infraction, the court may dismiss the infraction.

    (b) A person may not receive more than one deferral within a seven-year period for traffic infractions for moving violations and more than one deferral within a seven-year period for traffic infractions for nonmoving violations.

    (c) A person who is the holder of a commercial driver's license or who was operating a commercial motor vehicle at the time of the violation may not receive a deferral under this section.

    (d) A person who commits negligent driving in the second degree with a vulnerable user victim may not receive a deferral for this infraction under this section.

    So the qualifier there is whether the defendant has had a "traffic infraction"...

    And according to paragraph (1) of RCW 46.61.667:

    (1) Except as provided in subsections (2) and (3) of this section, a person operating a moving motor vehicle while holding a wireless communications device to his or her ear is guilty of a traffic infraction.


    Using a cell phone is "an infraction"....

    So the question that remains then is: does the court run a check of the driver's record at the Department of Licensing or do they check court records where pursuant to RCW 46.52.101, "every court must retain records of every 'infraction' permanently"?

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