California 23123a - What is a Wireless Phone

[bozata]

My question involves a traffic ticket from the state of: CA
I received a citation for 23123A - driving while on cellphone. Initially, I thought to just pay the bail but when I found out that for $20 fine I have to pay $142 bail I think I should fight it.

The truth is that I was holding my iPhone to my ear, however, I was listening to a podcast, not using the phone part. The car was noisy and even at the full volume I couldn't hear it. In effect, I was using the phone as a portable audio player rather than the phone.

I have records from ATT showing that I was not using the phone at the time of the citation. Will that be enough to prove my innocence?

Thanks!

[mamabear2102003]

Both hands were not on the wheel if you were holding the iphone to your ear. Hence a distraction. Buy some headphones/earbuds and pay the ticket.

[bozata]

The law does not say anything about both hands being on the wheel....

[jk]

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.

was the thing in your hand a wireless phone? (hint: yes)

were you using it in a designed use as a hands free device?(hint: no)

were you driving? apparently

there is no requirement of using it as a phone and no exception for using it as a mp3 player.

so, your argument of innocence is...?

[mamabear2102003]

You were prolly initially pulled over because the officer observed you without both hands on the wheel because of a device being held to your ear. The purpose of the law is to avoid distraction while driving. If you drop the iphone, you're going to be further distracted. Is it worth the additional cost to fight something that you will probably end up paying anyway? And honestly, is your life (or someone elses) worth a podcast? JMHO.

[bozata]

Interesting argument. So if it was a iPod Touch rather than iPhone I would be home free? The Touch does not have a build-in phone...

I would not go nowhere near the distraction argument because it is extremely weak. For example, it is not the fact that you are holding something, it is the fact that you are having a conversation that distracts you. If you make the argument for holding something, then how about eating? If it is both hands on the wheel - how about changing gears on manual transmission.... As I said, please don't even start that discussion

[jk]

bozata;413968]Interesting argument. So if it was a iPod Touch rather than iPhone I would be home free? The Touch does not have a build-in phone..

.so, you plan on claiming it was your touch and not the phone you were holding? Obviously they are identical visually so anybody with an Iphone could make such a claim but a reasonable person would object to the citation at the time. I seriously doubt that claiming it later would work. It would be interesting to see the outcome of such an effort though.

from a discussion with an officer out there, I believe the touch would in fact be legal.

I would not go nowhere near the distraction argument because it is extremely weak. For example, it is not the fact that you are holding something, it is the fact that you are having a conversation that distracts you. If you make the argument for holding something, then how about eating? If it is both hands on the wheel - how about changing gears on manual transmission.... As I said, please don't even start that discussion :

it is not just the discussion either since the discussion itself is allowed specifically, It is the use of the hands and it being a phone.

It is a very poorly written statute.

[That Guy]

VC 23123(a) (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.

So, break that down to:

A person shall not drive a motor vehicle (you were in fact driving)
while using a wireless telephone (yupp, an iPhone is a wireless telephone)
unless that telephone is specifically designed (yes, it is designed as such but does it meet the other criteria?)
and configured to allow hands-free listening and talking (whether it was configured that way or not is not relevant because...)
and is used in that manner while driving. (... You were NOT using it in that manner).

And please do not argue that it is not a distraction... Whether it is a distraction or not is irrelevant in light of the fact that "being distracted" is not an element of the offense as is described and set by the 23123(a) code section. The only element that must be met to prove guilt, is whether you were using it -a wireless phone- as a hands free device or not... Obviously in this case and since it was IN YOUR HAND and UP TO YOUR EAR, the officer's case is an easy slam dunk!

[bozata]

I agree, the statute does not talk about distraction at all - that is why I do not want to have distraction-based discussion.
The point of my argument is that I was not using a wireless phone, I was using an MP3 player. What if it was a phone in a shape of a cup and I was using it to drink out of it? Will this statute still apply?
BTW: It is indeed a very poorly written statute. It looks like a knee jerk reaction rather than a thought out statement.

[jk]

you were using a wireless phone that also happens to be an mp3 player. As I said, there is no exception for a phone that is used as something else as well. The law simply states a phone that is being used without the benefit of a hands free system.

maybe you can set some case precedent for future use but I'm not sure the courts will accept the argument that the statute is intended to control the use of the phone portion of the device. Even if they do, I doubt you will be able to prove to their satisfaction that you were not using the phone at the time of the incident. The fact you did not have an active call at that time does not refute an argument that you were attempting to make a call and it was disrupted by the officers presence and terminated prior to a connection to the providers system.

if you decide to argue this, be sure to come back and post the result.