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  1. #1
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    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
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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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    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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    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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    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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    Officially across the country from where I've been all my life
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    Default Re: Fighting a 23123 (A) Cell Phone Ticket in California

    My bluetooth allows me to redial the last number called whether or not it's in my phone book and is completely voice activated. Perhaps you should get one. It's cheaper than the ticket.
    If you wanted babies all to yourself, you should have created them by yourself. Until you do that, children have the right to BOTH parents, especially since you found them suitable to procreate with.

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

    But is it unlawful to dial a cell phone while driving as the letter of the cell phone law is written? I say no.

    Another thing to consider is that an I-phone has about ten functions ranging from a camera, video recorders, audio recorder, GPS, I-Pod for music & pod casts, etc. Only the communication feature of the phone is unlawful to use while driving. So if you were able to prove you were not specifically texting, wouldn't all the other functions, including dialing, be allowed to operate while driving since there does not seem to be a specific law prohibiting their use while driving?

    I doubt it is unlawful to handhold a Garmin GPS while driving. So why would it be unlawful to handhold an I-Phone GPS if the phone/texter was not in use?

  9. #9
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    Default Re: Fighting a 23123 (A) Cell Phone Ticket in California

    Quote Quoting ileventh
    View Post
    In this case, I needed to redial the number of someone that I had called earlier who was not in my phone book.
    Then you were NOT using it in a hands free manner no matter how you argue it.

    Quote Quoting ileventh
    View Post
    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!
    Literally, "one" button?

    How did you bring up your call log? And by "button" it need not be a physical button in that you could tap the screen... But the point not about how many buttons does the statute prohibit you from pushing or tapping, it is the fact that you are prohibited from doing ANYthing while holding a phone in your hand. It really isn't that difficult to comprehend!

    Quote Quoting ileventh
    View Post
    no checking emails, no checking stocks, nothing...just one button!
    There is nothing in the code section that explicitly prohibits any of those acts, however, again, you are prohibited from doing ANYthing while that device is in your hand.





    Quote Quoting So Cal
    View Post
    But is it unlawful to dial a cell phone while driving as the letter of the cell phone law is written? I say no.

    Another thing to consider is that an I-phone has about ten functions ranging from a camera, video recorders, audio recorder, GPS, I-Pod for music & pod casts, etc. Only the communication feature of the phone is unlawful to use while driving. So if you were able to prove you were not specifically texting, wouldn't all the other functions, including dialing, be allowed to operate while driving since there does not seem to be a specific law prohibiting their use while driving?

    I doubt it is unlawful to handhold a Garmin GPS while driving. So why would it be unlawful to handhold an I-Phone GPS if the phone/texter was not in use?
    Once again, you have proven that you should really refrain from posting when you have no clue. You might even learn something if you would just lurk in the background and read....

    From: People v. Spriggs, Cal: Superior Court 2013

    Our review of the statute's plain language leads us to conclude that the primary evil sought to be avoided is the distraction the driver faces when using his or her hands to operate the phone. That distraction would be present whether the wireless telephone was being used as a telephone, a GPS navigator, a clock or a device for sending and receiving text messages and emails. But to the extent the language of the statute may be otherwise interpreted, the court must resolve any ambiguity.
    ...
    .......
    Neither the plain language of the statute nor the legislative history support the conclusion that section 23123, subdivision(a), was designed to prohibit hands-on use of a wireless telephone for conversation only. Notably, the legislative history acknowledges that the statute as worded does not eliminate a "potentially more significant" distraction of carrying on a conversation while driving. The statute instead focuses on the distraction a driver faces when using his or her hands to operate the phone, specifically including "the physical distraction a motorist encounters when either picking up the phone, punching the number keypad, holding the phone up to his or her ear to converse, or pushing a button to end a call." That distraction would be present whether the phone is used for carrying on a conversation or for some other purpose.
    ...
    .....
    .......
    Because it is undisputed that appellant used his wireless telephone while holding it in his hand as he drove his vehicle, his conduct violated Vehicle Code section 23123, subdivision (a).

    As you can see, the issue has been decided. Holding a phone in your hand means you were NOT using it as a hands free device and therefore you are guilty of the charge under the circumstances described in this thread.

  10. #10
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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.

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