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  1. #1

    Default Cell Phone Ticket

    My question involves a traffic ticket from the state of: CA
    23123a - talking on cell phone while driving.

    I was wearing a blue tooth headset. The phone / headset was having a "handshake" issue in that I heard the confirmation tones but did not hear anything after that. I looked at the phone and it indicated that a call was in progress. I then held the phone to my ear to determine if the "handshake" problem was with the phone or the headset. CHP office saw that, pulled me over.

    I explained that there was a temporary issue with the headset. I guess he thought I was wearing it for "window dressing", whatever. received citation.

    he did not ask me to demonstrate if the headset does/could work.

    are there any grounds to fight this? I could demonstrate in court the phone/headset does work. I could probably cross examine the officer to show that he did not verify if the headset was functional.

    is the act of "holding a phone to one's head" proof of guilt?

  2. #2
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    Default Re: Cell Phone Ticket

    Quote Quoting 23123a-omg-notme
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    is the act of "holding a phone to one's head" proof of guilt?
    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.


    You're free to argue that your phone was designed and configured to allow hands free listening and talking... and that it could be "functional" in that manner, however, your argument may fall apart when you try to show that you were using it in "that" manner. "That" being "hands free"!

  3. #3

    Default Re: Cell Phone Ticket

    thanks for the response. I have read that this infraction is not supposed to be "cite-able" in and of itself. i.e. you are supposed to been seen speeding (for example) and talking...has that provision fallen to the wayside? does it even matter that I was pulled over and cited for just that?

  4. #4
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    Default Re: Cell Phone Ticket

    Quote Quoting 23123a-omg-notme
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    I have read that this infraction is not supposed to be "cite-able" in and of itself. i.e. you are supposed to been seen speeding (for example) and talking...
    Not true... When this section first became operative (July 1, 2008), law enforcement officers were handing out warnings for a short period of time after which, they began issuing citations for these violation. There was never a time where this violation was considered as secondary.

  5. #5

    Default Re: Cell Phone Ticket

    ok. thx. probably an old post I read on that point. going back to the vagueness of the statute:

    "unless that telephone is specifically designed and configured to allow hands-free listening and talking," a demonstration of the phone/headset should easily satisfy that clause, but as you pointed out, the second part of that: "and is used in that manner while driving."... what does that mean?

    wearing the head set? is the vagueness enough to allow for "following the spirit of the law"? there aren't specific exemptions for "technical difficulties"...does the vagueness benefit the officer/court or the defendant? is it reasonable to argue the first clause against the second?

  6. #6
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    Default Re: Cell Phone Ticket

    Quote Quoting 23123a-omg-notme
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    "unless that telephone is specifically designed and configured to allow hands-free listening and talking," a demonstration of the phone/headset should easily satisfy that clause, but as you pointed out, the second part of that: "and is used in that manner while driving."... what does that mean?
    it means used as a "hands free" device...

    Quote Quoting 23123a-omg-notme
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    wearing the head set?
    No, you don't get cited for wearing or not wearing a headset. There are "hands free devices" that are not headsets...

    Quote Quoting 23123a-omg-notme
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    is it reasonable to argue the first clause against the second?
    Not with the AND in between...

    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.

  7. #7
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    Default Re: Cell Phone Ticket

    This is so stupid it makes me want to vomit on the California Legislature and the idiot cop who wrote the ticket.

    OP, you should not focus on the headset. You should focus on the word "using". Technically, you were not "using" the phone (i.e. operating it in its designed mode). You were preparing the phone FOR use. I know that sounds silly and its like splitting hairs, but isn't that exactly what this cop is doing?? Furthermore, this clearly does not violate the intent of the law as you were no more distracted by "preparing the phone for use" than you would have been if you were changing a channel on your stereo. This cop simply lacks what every cop should have.... judgment.

    So, you should get the cop to admit these things on cross examination:

    OP: Do you agree that this law was written with the same intent as the texting law?

    Cop: uh... sure.

    OP: VC Section 23123.5(b) states:

    (b) As used in this section "write, send, or read a text-based
    communication" means using an electronic wireless communications
    device to manually communicate with any person using a text-based
    communication, including, but not limited to, communications referred
    to as a text message, instant message, or electronic mail.
    OP: Since these laws have similar intent, would you consider "using" a cell phone to mean communicating with another person on the cell phone?

    cop: duh... I guess.

    OP: When you pulled me over I was wearing a bluetooth headset device, right?

    cop: I don't think so.

    OP: Don't you remember that I explained to you that I had a technical problem with getting the bluetooth headset to connect and I was verifying connection at the time you stopped me? (show him the headset and the phone)

    cop: oh yeah..

    OP: so, can you testify truthfully that you know for a fact that I was using my cell phone to communicate with another person and not simply verifying its operation before I did begin to communicate with another person?

    cop: I guess I can't

    OP: excellent........ (stated in a Monty Burns voice while wringing hands)

  8. #8
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    Default Re: Cell Phone Ticket

    Quote Quoting 23123a-omg-notme
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    I have read that this infraction is not supposed to be "cite-able" in and of itself. i.e. you are supposed to been seen speeding (for example) and talking...has that provision fallen to the wayside? does it even matter that I was pulled over and cited for just that?
    I think you are thinking of 23124(a) VC, which is juvenile driving with a headset. That is secondary offense. 23123(a) VC is a primary offense. So yes, you can get stopped just for that.

    How old are you?

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