Jim Porter: Using cell phone while stopped at traffic light a crime in CA?
December 15, 2011
TAHOE/TRUCKEE and#8212; Everyone knows that as of January 1, 2007, California prohibited use of cell phones while driving. Civil Code Section 23123(a): and#8220;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.and#8221; Later a Code was added prohibiting use of an electronic wireless device and#8220;to write, send, or read a text-based communication.and#8221;
Here is the question of the day: If I am stopped at a traffic light and use my cell phone, am I using my cell phone and#8220;while drivingand#8221;? Or is there a loophole in the law because the fleeting use of my phone while I was stopped was not while I was and#8220;drivingand#8221;?
If you find our question of the day tantalizing, you should have gone to law school. Or to a shrink.
Just the facts, maand#8217;am
Carl Nelsonand#8217;s car was stopped at a red traffic light in Richmond, California. Unfortunately for Carl, a motorcycle cop pulled up next to him and watched him dialing his flip-type phone and placing it to his ear. When our defendant Carl saw the officer he immediately removed the phone from his ear and closed it. Evidence of guilt? He was cited for using a cell phone while driving.
Carl challenged his infraction through many appeals, ultimately landing before the First District Court of Appeal. Carl must be a and#8220;man of principle.and#8221; The base fine plus assessment penalties is $151 for the first violation and $259 for subsequent violations. Carland#8217;s attorney fees are and#8212; priceless.
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Carl said he was checking his email and pushing some buttons on his phone, waiting for the traffic light to turn green. He argued that he was not and#8220;drivingand#8221; because driving requires some volitional movement, citing a California Supreme Court case.
Carl made some pretty good points. If he could be cited then so could someone who is and#8220;stopped in traffic behind a major accident that was taking hours to clear,and#8221; or and#8220;to call to a child requesting him to come through the rain from inside the school to a parent temporarily stopped, with foot on break, in a passenger loading zone,and#8221; or and#8220;while waiting for a train to pass or delayed for hours due to a road spill.and#8221;
But Carl went on and#8212; arguing that to find him guilty is particularly and#8220;absurdand#8221; when a person sitting in the driverand#8217;s seat at a traffic light and#8220;may lawfully put on make-up, eat a messy sandwich, or focus entirely on changing radio stations or music CDs in the car stereo, yet and#8212; under the result (in this case) and#8212; that same person could not lawfully push one pre-programmed speed dial button on a cell phone to check his or her voicemail.and#8221; You go Carl.
The peopleand#8217;s arguments
The people, the prosecutor, declined to engage in Carland#8217;s analogies (as did the Court), arguing, and#8220;Were we to adopt defendantand#8217;s interpretation, we would open the door to millions of people across our state repeatedly picking up their phones and devices to place phone calls and check voicemail (or text-based messages) everyday while driving, whenever they are paused momentarily in traffic, their car in gear and held still only by their foot on the brake, however short the pause in the vehicleand#8217;s movement. This could include fleeting pauses in stop-and-go traffic, at traffic lights and stop signs, as pedestrians cross, as vehicles ahead navigate around a double-parked vehicle, and many other circumstances.and#8221;
The People also argued that and#8220;while drivingand#8221; is essentially the same as and#8220;while operatingand#8221; a vehicle and Carl was operating a vehicle. Plus he had and#8220;volitional movementand#8221; as his car moved immediately before and after his fleeting pause at the red light.
The Court upheld the citation finding Carl was using his cell phone while driving. In case you are wondering, there is another Vehicle Code that allows a driver to pull over to the side of the road and park in order to use a hand-held wireless phone.
One Justice wrote a succinct, yet flavorful, concurring opinion agreeing with the majority of the Court: and#8220;Any mom or dad driving kids to school can expect to stop while parents in cars in front of them are unloading their kids. A shopper driving to a store near Lake Merritt in Oakland may have to stop while a gaggle of geese crosses the street. A couple going for a Sunday drive in West Marin County may have to stop for a cattle crossing. And, of course, all of us are expected to stop for red lights, stop signs, crossing trains, and funeral processions. In short, all drivers may, and sometimes must, stop. But they do so while and#8220;driving.and#8221; Just like defendant.and#8221;
Jim Porter is an attorney with Porter Simon, with offices in Truckee, South Lake Tahoe and Reno. He is a mediator and was the Governor’s appointee to the Fair Political Practices Commission and McPherson Commission, both involving election law and the Political Reform Act. He may be reached at email@example.com or at the firmand#8217;s website http://www.portersimon.com.