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  1. #1
    Join Date
    Jan 2014
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    Default Fighting a VC 23123(A) Cell Phone Ticket in California

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

    I was pulled over this afternoon after I picked up my cell phone (in my hand, not to my ear), clicked redial on a number in my call log, put the phone down, and started talking using the hands-free Bluetooth system installed in my car. I pleaded my case to the officer, and explained that I was using a hand-free device and NOT sending text messages. I was simply talking using the hands free device, I put the phone back down right after I hit redial, and had both hands on the wheel. The officer told me that it didn't matter, that I couldn't even pick the phone up to hit the Redial button.

    The officer cited me for VC 23123 (a). I looked it up in the vehicle code and it says the following:

    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.

    My cell phone IS designed and configured to allow hands-free listening and talking, and I WAS using it in that manner.

    I believe that I should be able to successfully fight this ticket by showing the evidence that my car is properly equipped and the cell phone is properly configured. Please let me know any other guidance you have that will allow me to successfully prove my case. Thanks!

  2. #2
    Join Date
    Sep 2010
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    Default Re: Fighting a 23123 (A) Cell Phone Ticket in California

    The problem is that you WERE NOT USING IT in that manner. You were holding it in your hand to place the call. This is not in the hands free mode and you are guilty.

  3. #3
    Join Date
    Oct 2013
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    334

    Default Re: Fighting a 23123 (A) Cell Phone Ticket in California

    But he was using it in that manner!

    The specific language of that law says you are allowed to use a cellphone while driving if "that telephone is specifically designed and configured to allow hands-free listening and talking" and is used in that manner while driving. Nowhere does the law state that hands-free dialing is required. If hands free dialing was required it must be included in the verbiage of the law. It is not.

    I'd say you stand a chance of beating the ticket if the judge made his determination to the letter of the law. Also the term 'hand-free' does not assume hand free dialing, it assumes hands-free talking and listening just like the law states.

    We all know dialing while driving is very dangerous. It's also very hard for an officer to determine whether you are dialing or texting. So i'd say the judge will find you guilty because it is dangerous and you resemble a texter. It could probably be beaten on appeal…but who wants to go through that?

    Just pay it and move on. It's only $160 and no points - one of the cheapest tickets you can get in CA. Most insurance companies do not ding you for it and you can get as many as you want without any points.

    But, dialing a cellphone while driving with a hands-free ear bud in your ear seems legal and should pose a problem for the way that law is written.

    On a side note: A motor cop told me a few weeks ago that our local judges are particularly upset with cellphone users because people are not respecting the new law and talking anyway because the cellphone law has no teeth. So good luck arguing that one.

  4. #4
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    Jan 2014
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    Default Re: Fighting a 23123 (A) Cell Phone Ticket in California

    Thanks for sharing your thoughts. With a little more digging I also found the following:

    https://www.dmv.ca.gov/cellularphonelaws/

    "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. "

    Based on this it certainly seems that I should be able to successfully fight the ticket. But I'm concerned about what So Cal said about judges being upset with cellphone users. I'm upset with them too. Whenever I look around me I see so many people with their phones glued to their ears! I always use my handsfree Bluetooth system and even dial with it whenever possible. In this case I needed to redial a number that was not in my phonebook, so I had to hit the redial button to do that. It really irks me because if the police are looking for someone who is actually breaking the law, they can find them practically any time rather than picking on people who are actually supporting and following the law.

  5. #5
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    Nov 2013
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    Pennsylvania
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    806

    Default Re: Fighting a 23123 (A) Cell Phone Ticket in California

    I always assumed that these laws required COMPLETE hands-free usage. In my car, I have UConnect or whatever it is called. I don't have to touch my phone AT ALL. I can place calls to anyone in my phone book by simply activating the UConnect (single button on the rearview mirror) and the rest is voice activated.

  6. #6
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    Default Re: Fighting a 23123 (A) Cell Phone Ticket in California

    Yes, I have the same ability to dial anyone in my phone book using totally hand-free operation, and I do that whenever possible. In this case, I needed to redial the number of someone that I had called earlier who was not in my phone book. I literally just brought up my call log, hit that phone number, and put the phone back down. No texting, no checking emails, no checking stocks, nothing...just one button!

  7. #7
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    Default Re: Fighting a 23123 (A) Cell Phone Ticket in California

    Quote Quoting ileventh
    View Post
    https://www.dmv.ca.gov/cellularphonelaws/

    "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. "
    That statement from the DMV, along with the language of the written statute, it seems pretty clear dialing is allowed.

  8. #8
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    Default Re: Fighting a 23123 (A) Cell Phone Ticket in California

    Quote Quoting So Cal
    View Post
    That statement from the DMV, along with the language of the written statute, it seems pretty clear dialing is allowed.
    The DMV does not make up the law, the legislature does. The DMV does not interpret the laws, the courts do.

    The OP is free to make whatever argument he sees fit. He's wasting his time simply because what he did is against the law.

  9. #9
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    San Francisco, California, United States
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    Default Re: Fighting a 23123 (A) Cell Phone Ticket in California

    It is not illegal to dial or otherwise simply touch a wireless device while driving. CVC 23123 has no such restriction on dialing phones, regardless of the current, popular interpretation of the phrase "hands free."

    California Vehicle Code 23123 was written in 2006. “Hands-Free-Mode,” in 2006, meant either wearing the cellphone earpiece while talking OR using the cellphone in speaker mode. It was interpreted at the time as making it illegal to hold the phone up to your ear and talk into it, but it remained perfectly legal to touch the phone in order to dial the phone.

    Since 2006, some phones have evolved a hands-free mode that enabled hands-free dialing. However, this was NOT part of the law in 2006 and it is not part of the law now. Hands-free dialing simply did not exist in 2006 (not for the vast majority of cell phone users, anyway). It was perfectly legal to touch your phone for the purposes of dialing after the law was passed in 2006, and it remains so now, regardless of today’s popular definition of the phrase “hands-free.” The law has not changed, only some police officer's interpretation of what "hands-free" means.

    Not being able to touch your device is simply not part of CVC 23123. It does not say anywhere in CVC 23123 that you are not allowed to touch your device. CVC 23123 says: “(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.” Please note that it specifically references hands free listening and talking, not dialing or looking at the map or otherwise touching the phone. Please note that nowhere in the code does it say it is illegal to touch your device.

    23123.5 was added to the California Vehicle Code in 2009. It prohibits texting (something just about everyone agrees should be illegal). 23123.5(c) says:

    (c) For purposes of this section, 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 ( )2 call or if a person otherwise activates or deactivates a feature or function on an electronic wireless communications device.

    If there is any doubt, whatsoever, that the vehicle code does not ban touching your phone, 23123.5(c) clearly removes that doubt. 23123.5(c) states, unequivocally, that it is perfectly legal to activate or deactivate a feature or function on a device with your hands.

    A trial by written declaration should easily dispatch this ticket and save you the trouble of a court appearance. Make sure you request a trial de novo, should you lose your trial by written declaration. You might also want to include a filled-out TR-220 form to include with your declaration, just to show you mean business.

    Directions for challenging this ticket via trial by written declaration can be found here: TicketAssassin.com

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