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  1. #1
    Join Date
    Nov 2018
    Posts
    3

    Default Ticket for Holding a Cell Phone, VC 23123(A)

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

    A month ago, I was stopped while holding a cell phone, running the maps app, into my hand, and issued a VC 23123(a) citation.

    I know this may be difficult for anyone to believe, but I was not paying any attention to my phone while driving - I had forgotten it was even in my hand. I had been looking at maps before leaving, waiting for the traffic to subdue, and had forgotten about putting the phone down before starting.

    During the stop, I showed the call log to the officer which showed I had not had any calls on that phone for the last 4 days (yes, I basically hate cell phones. it's not common for me to even carry one, usualy it stays at the office. which is why I don't have the reflex of putting it in my pocket like most people would normally do).

    I am considering to contest the ticket. VC 23123(a), which I was cited for, only covers phone calls, and as I showed the officer I was not on a call at any time during driving.

    Maybe the officer may try to reclassify the ticket as VC 23123.5(a) instead, but I am unsure if I broke that law either. VC 23123.5(a) states: "A person shall not drive a motor vehicle while holding AND OPERATING a handheld wireless telephone or an electronic wireless communications device unless [...]". What does it mean to operate a device, can you be operating it if you are not doing anything with it ? Later in VC 23123.5(c) (speaking about mounted rather than hand-held devices), "operating" seems to mean pushing buttons or tapping or flicking the screen, which I did not do at any point while driving.

    I understand it may be difficult to prove that I didn't fiddle with the phone, but my question here is about the law: if I actually didn't do anything with the device other than holding it, was I violating VC 23123.5(a) ?

    Also, is there any way I can oppose reclassifying the ticket as VC 23123.5(a), or, maybe make the point that the officer didn't charge me under it precisely because he didn't see me fiddle with my phone which is why he thought I was on a call ?

  2. #2
    Join Date
    Oct 2016
    Posts
    4,301

    Default Re: VC 23123(A) - Holding a Cell Phone

    What makes you think you have to actually be calling someone.


    (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.

    You had a wireless telephone in your hand. Nowhere in the above does it mention actually making a call.

  3. #3
    Join Date
    Nov 2018
    Posts
    3

    Default Re: VC 23123(A) - Holding a Cell Phone

    People v. Spriggs (https://scholar.google.com/scholar_c...57383611460350) covers this: "We agree with Spriggs and conclude, pursuant to the rules of statutory interpretation, including our review of the language and legislative history of section 23123(a), that the Legislature intended the statute to only prohibit the use of a wireless telephone to engage in a conversation while driving unless the telephone is used in a hands-free manner." VC 23123 did not change since that judgement, though VC 23123.5 did.

  4. #4
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: Ticket for Holding a Cell Phone, VC 23123(A)

    You can present your defense to the ticket -- you were holding it because you forgot it was in your hand -- and object to any effort to amend the ticket (should one be made). What will happen? It depends on the judge.

  5. #5
    Join Date
    Jul 2018
    Posts
    2,745

    Default Re: Ticket for Holding a Cell Phone, VC 23123(A)

    You were holding the phone with an app running. While VC 23123.5(a) doesn't contain a definition of "operating," I have a hard time believing any judge would conclude you weren't doing exactly that. You can make any arguments you like, but if I were you, I'd see if traffic school is still a possibility (wouldn't hold my breath about that either).

  6. #6
    Join Date
    Mar 2018
    Posts
    326

    Default Re: Ticket for Holding a Cell Phone, VC 23123(A)

    You have a good defense, go with it. Print out the People v. Spriggs and your phone records and be ready to show them to the judge. The cop can't reclassify the ticket, and the judge is very unlikely to do so. If he does, go with the "I forgot I had the phone in my hand." There's no law against just holding it in your hand and, no, you were not operating it. I'm not saying they will believe you, of course, but definitely worth a shot.

  7. #7

    Default Re: Ticket for Holding a Cell Phone, VC 23123(A)

    Definitely worth fighting it. If you lose, no biggie since it's a no point violation so no need for traffic school.

  8. #8
    Join Date
    Jul 2014
    Posts
    173

    Default Re: Ticket for Holding a Cell Phone, VC 23123(A)

    https://www.rammount.com/blog/2017/0...ands-free-law/
    https://www.sacbee.com/news/local/tr...123126354.html


    You need to have a mounting bracket to use your cellphone in the car in CA, and there are additional restrictions. I don't think you'll be able to beat this, but as others have said, there's no legal harm in trying.

  9. #9
    Join Date
    Jul 2014
    Posts
    173

    Default Re: Ticket for Holding a Cell Phone, VC 23123(A)

    Quote Quoting flyingron
    View Post
    Again, the court held in Spriggs that the law says "use" and "use" means making phone calls. If the legislature meant to make merely HOLDING a phone illegal, they need to make the law say that.
    Spriggs is from 2014. It is outdated and considered to be a closed loophole.

    https://leginfo.legislature.ca.gov/f...5.&lawCode=VEH

  10. #10
    Join Date
    Jul 2014
    Posts
    173

    Default Re: Ticket for Holding a Cell Phone, VC 23123(A)

    “The whole idea is you don’t have the phone in your hand, period,” said Assemblyman Bill Quirk, D-Hayward, author of the new law...
    https://www.sacbee.com/news/local/tr...123126354.html

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