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  1. #1
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    Jan 2007
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    Default Holding a Cell Phone While Talking on Speakerphone - VC 23123.5a

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

    I got pulled over after city police officer coming in opposite direction on motorbike saw me holding the phone with my right hand around my chest area. I was merely holding it and not looking at it, or interacting with it in other way -- it was a phone call on speakerphone. On superficial reading it seems VC 23123.5a does not apply for the case of holding. Officer claimed I was holding the phone "with both hands"

    I have timestamp on the ticket and a matching phone record to prove that I was on the phone. Does it make sense to contest this?

  2. #2
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    Mar 2013
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    Default Re: Holding a Cell Phone While Talking on Speakerphone - VC 23123.5a

    Quote Quoting sergey123
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    On superficial reading it seems VC 23123.5a does not apply for the case of holding.
    Read it less superficially:

    (a) A person shall not drive a motor vehicle while holding and operating a handheld wireless telephone or an electronic wireless communications device unless the wireless telephone or electronic wireless communications device is specifically designed and configured to allow voice-operated and hands-free operation, and it is used in that manner while driving.

    "Hand free" doesn't mean one hand free.

    The officer says you were holding it with both hands. Do you know why he said that? To get you to say "No, I was only holding it in one hand." There, you admitted to the violation.

    Does it make sense to contest this?
    Not to me.

    When are you Californians going to learn not to touch your phone. The law's been around long enough that babies should know it from birth.

  3. #3
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    Feb 2020
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    Default Re: Holding a Cell Phone While Talking on Speakerphone - VC 23123.5a

    Quote Quoting adjusterjack
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    "Hand free" doesn't mean one hand free.

    The officer says you were holding it with both hands. Do you know why he said that? To get you to say "No, I was only holding it in one hand." There, you admitted to the violation.

    Not to me.

    When are you Californians going to learn not to touch your phone. The law's been around long enough that babies should know it from birth.
    Boy, you got enough hate to go from Texas to California, huh?

    OP, you should fight it because if you can prove you were on hands-free operation, you'd beat it. Regardless if you had your phone in your hand.

    The officer must prove that you were operating the phone while it was in your hand. He can't say that.

    If he saw you speaking with phone in your hand, it isn't proof that you were speaking into the phone and not the dashboard.

    Bring the person you were speaking to into court and have him/her testify that you sounded like you were on the car system.

    On the other hand, it is only about $160 and will not put any points on your driving record. But everybody should get some experience in the courtroom. You never know when you could use that experience for a bigger issue. At the very worst, you'll see how cops lie under oath.

  4. #4
    Join Date
    Oct 2016
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    Default Re: Holding a Cell Phone While Talking on Speakerphone - VC 23123.5a

    And how exactly is he going to prove he was using the phone "hands-free" when he had it in his hand?

  5. #5
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    Default Re: Holding a Cell Phone While Talking on Speakerphone - VC 23123.5a

    Quote Quoting PayrolGuy
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    And how exactly is he going to prove he was using the phone "hands-free" when he had it in his hand?
    There is no law against holding a phone or a cup of coffee while driving a car. The onus is upon the cop to prove you were not using the phone hands-free. That you were speaking into the phone and not the dash.

    Seems to be an impossible burden of proof for the cop.

    How about you tell how you would prove it if you were the cop?

  6. #6
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    Default Re: Holding a Cell Phone While Talking on Speakerphone - VC 23123.5a

    I'm going to disagree. First, by his own admission, he was breaking the law. If he made that statement to the officer, that statement is enough to convict him he without any further observations of the officer.
    The statute doesn't require to officer to "prove you were not using the phone hands-free." All it says is "hold and operate."

  7. #7
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    Default Re: Holding a Cell Phone While Talking on Speakerphone - VC 23123.5a

    Quote Quoting flyingron
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    I'm going to disagree. First, by his own admission, he was breaking the law. If he made that statement to the officer, that statement is enough to convict him he without any further observations of the officer.
    The statute doesn't require to officer to "prove you were not using the phone hands-free." All it says is "hold and operate."
    If he was speaking into the hands-free mic on the dash, he was using the phone hands-free, regardless of holding the phone. If he told the cop he was using the speaker and mic on the phone, he sunk himself. But I do not expect you to agree.

  8. #8
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    Default Re: Holding a Cell Phone While Talking on Speakerphone - VC 23123.5a

    No, you're still wrong. It matters not where the microphone and speaker is. He was holding the phone and he was operating it. Note that the "and used in that manner" in the statute. Holding it is not "using it in that manner."

  9. #9
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    Default Re: Holding a Cell Phone While Talking on Speakerphone - VC 23123.5a

    Quote Quoting flyingron
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    No, you're still wrong. It matters not where the microphone and speaker is. He was holding the phone and he was operating it. Note that the "and used in that manner" in the statute. Holding it is not "using it in that manner."
    If he was not talking into the phone, he was using it hands-free.

    Hands-free is a function, not an act.

    You'd probably say that visibly using an earbud with the phone in your hand on your lap is illegal. I'd say it IS being used hands-free. "See the hands-free device officer?"

    I'm heading out to install a huge bay window. I should take some pictures so you can tell me how wrong I was in that too.

  10. #10
    Join Date
    Oct 2016
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    Default Re: Holding a Cell Phone While Talking on Speakerphone - VC 23123.5a

    The OP never said he was using a "hands-free mic on the dash" he said, "...it was a phone call on speakerphone."

    And if you are using an earbud AND holding the phone it isn't a hands-free device. If it isn't in your hand but on your lap it is a hands-free device. Though I'm willing to bet in your case your hand is in your lap quite often.

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