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  1. #11
    Join Date
    Mar 2013
    Posts
    18,340

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

    Quote Quoting walken
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    I had forgotten it was even in my hand.

    Seriously? You're going with that?

    You were steering with one hand and you have no idea what the other hand was doing, the hand that wasn't on the steering wheel? Duh.

    When are you Californian's going to learn that when your state law says "hands free" it means don't touch your phone. Period.

  2. #12

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

    OP, do not let anyone here talk you out of challenging that ticket. There's no downside to fighting it in court.

  3. #13
    Join Date
    Nov 2018
    Posts
    3

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

    Quote Quoting adjusterjack
    View Post
    Seriously? You're going with that?

    You were steering with one hand and you have no idea what the other hand was doing, the hand that wasn't on the steering wheel? Duh.

    When are you Californian's going to learn that when your state law says "hands free" it means don't touch your phone. Period.
    OP here. Both hands were obviously on the wheel. It's pretty easy for me to hold a small object with two fingers while gripping the wheel between my palm and the other 3.

    Also - I do intend to proceed with this as a defense - Moving for dismissal of the VC 23123(a) charge based on Spriggs first, and if the court wants to consider VC 23123.5 instead, then testify that I did not "operate" the device. I don't need it to be a guaranteed win; I think it's worth trying as long as it's not a guaranteed loss. I am certain that I did not break the law I was cited for (Spriggs still applies as VC 23123 has not changed since). There is possible debate about VC 23123.5 depending on how one defines "operate", but I don't think I was violating that either under a reasonable definition of that word.

    One more procedural question - what is the judge's power regarding reclassifying infractions ? I thought that if anything, the prosecution would have to make the request as they are the side that brings on charges, but some comments (#6 in particular) have it the other way, which surprises me ? In other words, if the judge decides to change the charge on his own, can I object that this would be improperly acting as a prosecutor in the case ?

  4. #14
    Join Date
    Jul 2014
    Posts
    173

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

    Quote Quoting acai
    View Post
    OP, do not let anyone here talk you out of challenging that ticket. There's no downside to fighting it in court.
    True. My original message was lost in the bickering.

    Quote Quoting RandallCS
    View Post
    I don't think you'll be able to beat this, but as others have said, there's no legal harm in trying.
    I stand by this statement, and cannot wait to hear how it goes for you. I hope I'm wrong.

  5. #15
    Join Date
    Jul 2016
    Location
    Paso Robles, California
    Posts
    544

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

    Quote Quoting walken
    View Post
    One more procedural question - what is the judge's power regarding reclassifying infractions ? I thought that if anything, the prosecution would have to make the request as they are the side that brings on charges, but some comments (#6 in particular) have it the other way, which surprises me ? In other words, if the judge decides to change the charge on his own, can I object that this would be improperly acting as a prosecutor in the case ?
    You are correct; no matter what anyone else says, the judge cannot legally amend the complaint (citation)on his own whereas this would be a violation of the Separation of Powers Doctrine of both the U.S. and California Constitution.

  6. #16
    Join Date
    Dec 2018
    Posts
    168

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

    "Holding" a cellphone is not "using" a cellphone, just like holding a tennis racket is not using a tennis racket.

  7. #17

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

    The "prosecutor" will most likely be the cop who issued the ticket (like in my case) so I doubt they can amend the charge or even know how to do so.

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