VC 23123A Phone Usage - What do you think i do?

[B-Cuz]

Law aside, people who drive badly with a phone in their hand, drive just as badly while talking with a bluetooth device. So if you're (not directly you guys) one of those people, then it doesn't make a difference either way.

It's just like speeding...SOME people can drive safely going 66mph, while others just shouldn't really be driving.

But at now it is legal. Just like being an asshole isn't against the law either.

 

[}Dragon{]

But at now it is legal. Just like being an asshole isn't against the law either.

The jails aren't big enough.

 

[JPM]

So the judge thinks that stopped at a light = driving? Or didn't believe the defendants used it only when stopped?

Really, if the LEO testifies that the defendant was indeed stopped during the entire use of the phone, for reasons already stated I can't see how the conviction would survive appeal. But if that fact is disputed it's a different story.

You seem to be repeating yourself. Maybe if you say it enough it will be true.

 

[whyfly]

While I hate new laws, I detest cell phones. I see 10-15 people with a phone either up against their ear or holding it away down low so the police can't see it very easily, and about half of them are either sitting at greens or half in my lane. So, either pay the fine, and quit using your cell phone while driving or go to court, you might find a sympathetic judge.

 

[rodr]

You seem to be repeating yourself. Maybe if you say it enough it will be true.

I'm pretty sure my last post asked a brand new (and relevant) question.

 

[blackandwhite]

So the judge thinks that stopped at a light = driving? Or didn't believe the defendants used it only when stopped?

Really, if the LEO testifies that the defendant was indeed stopped during the entire use of the phone, for reasons already stated I can't see how the conviction would survive appeal. But if that fact is disputed it's a different story.

If you are in a motor vehicle, that is turned on, and you are in the driver seat, and you are in the lanes of traffic, you are driving a motor vehicle. Whether you are stopped at a red light, blowing down the road at 50, you are driving the car. What part of that is so hard to understand?

The point of the LEO forum is to ask the experts...how come when the people who know what the hell they are talking about give an answer, you think that all of a sudden you are a lawyer and know what is up?

 

[rodr]

If you are in a motor vehicle, that is turned on, and you are in the driver seat, and you are in the lanes of traffic, you are driving a motor vehicle. Whether you are stopped at a red light, blowing down the road at 50, you are driving the car. What part of that is so hard to understand?

The point of the LEO forum is to ask the experts...how come when the people who know what the hell they are talking about give an answer, you think that all of a sudden you are a lawyer and know what is up?

I'll interpret you to mean that the judge ruled against the defendants because he thinks that stopped at a light is the same as driving.

I'll pass on responding to the rest of this because (a) we are not supposed to bash LEOs here, and (b) I wouldn't want to repeat myself.

OP, best of luck with your case. Do let us know how it turns out.

 

[blackandwhite]

I decided to read the case law quotes you posted, and I think you misinterpret the quotes..


A "driver" is a person who drives or is in actual physical control of a vehicle. (Veh. Code, § 305.) The person steering or controlling a vehicle is a "driver" even if the car is pushed or towed by others (Jordan (1977) 75 Cal.App.3d Supp. 1) and even if someone else is working the clutch and brakes (Queen T. (1993) 14 Cal.App.4th 1143, 1145).

If you are sitting at a red light, you are in actual physical control of the vehicle. You are actively applying the brakes and making the vehicle stop where it is.


To constitute "driving," there must be some actual movement. (Mercer (1991) 53 Cal.3d 753, 768.) However, only slight movement of the vehicle is necessary, i.e., just a few feet, or even inches. (Padilla (1986) 184 Cal.App.3d 1022; Henslee (1985) 168 Cal.App.3d 445.) For a motorized vehicle, it includes any movement with the motor off, such as coasting down a hill, or pedaling a moped. (Jordan (1977) 75 Cal.App.3d Supp. 1.)


There was movement. They vehicle the OP was driving didn't just magically appear at a stopped red light. It moved there. It moved again once the light turned green. It sounds silly, but to understand that the Mercer case involved DUI laws, you would have to understand other aspects of DUI laws (i.e. 40300.5 CVC) to correctly apply this case law.



Example: Defendant was "driving" and therefore properly convicted of violating Vehicle Code section 23153, subdivision (a), where he was behind the wheel as his stalled vehicle came to a complete stop in the traffic lane, even though he had turned off the motor and gotten out before his car was hit by another vehicle. (Hernandez (1990) 219 Cal.App.3d 1177.)

This is an example from CPOLS (California Peace Officers Legal Source book)

The vehicle was at stop, in traffic lanes. His car got hit. The accident wasn't his fault, but he doesn't have to be at fault in the accident to be charged with 23152(A). Point is, he was considered to be driving the vehicle at the time of the accident, even though it wasn't actually in motion.

 

[what]

I decided to read the case law quotes you posted, and I think you misinterpret the quotes..


To constitute "driving," there must be some actual movement. (Mercer (1991) 53 Cal.3d 753, 768.) However, only slight movement of the vehicle is necessary, i.e., just a few feet, or even inches. (Padilla (1986) 184 Cal.App.3d 1022; Henslee (1985) 168 Cal.App.3d 445.) For a motorized vehicle, it includes any movement with the motor off, such as coasting down a hill, or pedaling a moped. (Jordan (1977) 75 Cal.App.3d Supp. 1.)


There was movement. They vehicle the OP was driving didn't just magically appear at a stopped red light. It moved there. It moved again once the light turned green. It sounds silly, but to understand that the Mercer case involved DUI laws, you would have to understand other aspects of DUI laws (i.e. 40300.5 CVC) to correctly apply this case law.

blackandwhite you've made a big mistake. The movement, according to the story above, took place while the phone was off. He did not "drive a motor vehicle while using a wireless telephone." There was no movement while the phone was being used.

DUI is substantially different, in that people do not turn on and off their drunken state at will. It is not possible to only be drunk while waiting for a red light.

In the red light/phone case, another substantial difference is that there is evidence in the form of call records. The time and duration of the call can be demonstrated. One of the key points in that section was establishing the "driving" state through circumstantial evidence -- but in this case that would be impossible. The call records, when checked, would destroy that theory.

rodr is correct. However, JPM is correct too -- though JPM's point seems to deal more with the ineptitude of your average traffic ticket fighter and less with the law.

 

[eddiet204]

So the judge thinks that stopped at a light = driving? Or didn't believe the defendants used it only when stopped?

Really, if the LEO testifies that the defendant was indeed stopped during the entire use of the phone, for reasons already stated I can't see how the conviction would survive appeal. But if that fact is disputed it's a different story.

I've been to court on many cases similar to yours. All were found guilty. Please let us know if your defense holds up.

 

[NorCalBusa]

Article in the Mercury over the weekend, about a Bill that's doubling all the cell phone penalties...Including $50 (plus fees) for simply "holding" the phone.

 

[wazzuFreddo]

Ignore your phone until you get to where you are going. There is voicemail and call id for a reason.

We are way passed the days where if you don't get to the phone in time you are left wondering, who called. Now we know exactly who called so why the rush to the phone?

 

[B-Cuz]

Personally, I wish I didn't even have a cell phone; unfortunately it's pretty much become a social requirement.

 

[CaliGuy2004]

I’ve heard all the arguments on the street and in the courts. I was listening to voice mail, I was at a red light, I wasn’t talking, I even have people tell they were not on the phone just "holding it there out of habit" and have said the same thing to a judge. All violations and all guilty in court as the section requires any wireless communication device to be operated hands free, it does not require you to be talking or even on it. So all those that think holding it like a walkie-talkie on speaker, still a violation and still a ticket.

As for the OP, you can try but you will be found guilty.

Actually according to the VC, section 23123 (e) "This section does not apply to a person when using a digital two-way radio that utilizes a wireless telephone that operates by depressing a push-to-talk feature and does not require immediate proximity to the ear of the user..."

That however was repealed for January 1, 2011 in which it will no longer be allowed.

BTW for everyone wondering, i do have a bluetooth, but when i have that thing jammed in my ear it kinda blocks all the sounds from that ear and it makes everything sound weird and deep. Since i usually dont talk while driving i dont keep it in.

The way i see it if i do a TBD, worst case im found guilty and pay what i have to pay originaly... right?

 

[rodr]

...
The way i see it if i do a TBD, worst case im found guilty and pay what i have to pay originaly... right?

Yeah you could go to arraignment, do discovery, do a TBD and then if found guilty you can request a new trial with a different judge. As someone already mentioned you may be able to get some feedback on your defense at arraignment. If the judge has already ruled against that defense before, then they are invested in their position and will surely rule against you also, thus the desire for a new judge.

If you lose again and really want to fight the good fight, there's an appeals process, not for the faint of heart.

You'll need one of the relevant books as there's a lot to do and consider.

Again I'm not a lawyer, just speaking as one who has been through some of this with my wife.

 

[}Dragon{]

Again I'm not a lawyer, just speaking as one who has been through some of this with my wife.

So, do you also feel that if "driving" is included in a vehicle code section, that it should not include "riding"? Wow- the courts would have to throw out a ton of speeding tickets for bikes if that the case.

On the same thinking, those signs that say "Speed Checked by Radar" should not include LIDAR.

The Webster dictionary defines "drive", when used as a transative verb, "2 a : to operate a vehicle".

 

[blackandwhite]

blackandwhite you've made a big mistake. The movement, according to the story above, took place while the phone was off. He did not "drive a motor vehicle while using a wireless telephone." There was no movement while the phone was being used.

DUI is substantially different, in that people do not turn on and off their drunken state at will. It is not possible to only be drunk while waiting for a red light.

In the red light/phone case, another substantial difference is that there is evidence in the form of call records. The time and duration of the call can be demonstrated. One of the key points in that section was establishing the "driving" state through circumstantial evidence -- but in this case that would be impossible. The call records, when checked, would destroy that theory.

rodr is correct. However, JPM is correct too -- though JPM's point seems to deal more with the ineptitude of your average traffic ticket fighter and less with the law.

See I guess we will have to agree to disagree. So, according to your school of thought, If I am driving from point A to point B, and along they way I stop at three red lights, you are saying that everytime I stop for a red light, I am no longer driving?

 

[rodr]

See I guess we will have to agree to disagree. So, according to your school of thought, If I am driving from point A to point B, and along they way I stop at three red lights, you are saying that everytime I stop for a red light, I am no longer driving?

That seems to be the key question. You are a driver according to the CVC definition of that word, but if the aforementioned DUI case ruling is any indication then you are not driving during the short times that you are fully stopped.

Another way of approaching the cell phone situation is to ask, did the lawmakers think that using a phone when stopped at a light is truly dangerous? What is the true spirit of this law?

 

[B-Cuz]

What is the true spirit of this law?

To put the damn phone down.

 

[Razel]

That seems to be the key question. You are a driver according to the CVC definition of that word, but if the aforementioned DUI case ruling is any indication then you are not driving during the short times that you are fully stopped.

Another way of approaching the cell phone situation is to ask, did the lawmakers think that using a phone when stopped at a light is truly dangerous? What is the true spirit of this law?

To put the damn phone down.

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