Jim Porter: Cell phones, texting and Google-mapping while driving
October 15, 2014
There you are sitting impatiently in your Tesla Model S waiting for the traffic signal to turn green. You always have your cell phone at hand (even when you're meeting with friends or dining, my pet peeve, but for another time.)
Using your cell phone while waiting at a traffic light, can you: (a) send or read an e-mail to or from a friend; (b) send or read a text to or from your boss; (c) look at the GPS map to figure out where you are; (d) push the "mail" button and look at an e-mail?
Those are excellent questions. Fortunately for us, two 2014 Court of Appeal cases provide partial answers. But you have to decide one of these actual cases, so pay attention.
BTW, I test drove a Tesla last week. Not for me but nothing less than spectacular. Four-wheel drive comes out in 2015.
EMAIL AT TRAFFIC LIGHT
Carl Nelson's car was stopped at a red light in Richmond, California. He was checking his e-mail and pushing some buttons on his phone waiting for the traffic light to turn green, and was cited for using a cell phone "while driving." Was Nelson "driving" without volitional movement of his vehicle?
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The prosecutor argued that "while driving" is essentially the same as "while operating" a vehicle, and Nelson was operating his car. Nelson's citation was upheld.
You do not have to be moving to be cited. Note there is a 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.
TEXTING WHILE DRIVING
Anthony Corrales was, according to officers, leaning and looking down and making movements with his hand like he was texting — while he was driving. He was pulled over for texting while driving, and as can happen, the officers found methamphetamine in his car.
Corrales was cited for texting in violation of Vehicle Code Section 23123.5: using a hand held device to "write, send, or read a text-based communication … while driving."
I think this one's an easy call, and so did the Court of Appeal as they upheld the stop and search of Corrales' car and conviction for possession of methamphetamine based upon his texting while driving.
READING YOUR MAP APP
While stopped in heavy traffic, Steven Spriggs pulled out his wireless telephone to check a map application for a way around the congestion.
A CHP officer spotted him, pulled him over and issued a citation for violating Vehicle Code Section 23123(a), which prohibits drivers from "using a wireless telephone unless the telephone is specifically designed and configured to allow hands-free listening and talking, and is used in that manner while driving."
Spriggs contended he did not violate the statute because he was not "listening and talking" on the cell phone.
The People argued that any use of a cell phone in a vehicle that is not hands-free is a violation of Section 23123(a) because the Code cites that a driver may not use a cell phone unless it is used in a hands-free manner.
The Court of Appeal ruled in Spriggs' favor finding that, while stopped at a traffic light is "driving," Section 23123(a) does not prohibit all hand-held uses of a wireless telephone, but instead prohibits "listening and talking" on a hand held wireless telephone.
Spriggs did not violate that law when looked at a map application on his cell phone while driving. Conviction reversed.
ACTUAL CASE/YOU DECIDE
This happened to a good friend of mine. You decide how the judge should rule. Let's call this person Mrs. P. Mrs. P pulls up to a traffic light, let's say for sake of argument, somewhere near Mountain Hardware and Safeway, heading west. Red light, traffic stopped.
Mrs. P looks down at her cell phone sitting on the console and pushes the "mail" button once. She sees a list of recent e-mails on the screen. Mrs. P does not send or receive any e-mails or texts, or listen or talk on her phone, nor is she otherwise causing any problems.
A CHP officer observes Mrs. P looking down, turns on his light and pulls her over and cites her for texting while driving.
Even though the "no texting" law had just been implemented and she assumed she could look at her phone while waiting on the light, and Mrs. P's vehicle had a hands-free system so she was trying to comply with the law, the officer, let's call him Officer By-the-Book, did not give her a warning but issued a citation.
She sent the court a check for around $150 – against the advice of Mr. P who is not totally unfamiliar with a courtroom. (Mrs. P does not always listen to Mr. P, as it should be.)
YOU BE THE JUDGE
Is pushing the "mail" button on a hand-held cell phone while waiting in traffic a violation of Vehicle Code Sections 23123(a) or 23123.5?
I would say no, but I'm somewhat of an advocate for Mrs. P. It seems to me, just saying, she was clearly not texting and was not listening or talking while driving, nor was she writing, sending or reading a text-based communication to manually communicate with any person. You be the judge.
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee, Tahoe City and Reno. Jim's practice areas include: real estate, development, construction, business, HOAs, contracts, personal injury, mediation and other transactional matters. He may be reached at firstname.lastname@example.org or http://www.portersimon.com.
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