Dialing while driving

[sashatlhs]

What is the name of your state (only U.S. law)? CA
Hey you guys,
I posted on here a little while ago concerning a ticket I got for being on my cell phone and how I was found guilty during my hearing. Well, I was looking over the court documents and my citation when I found a discrepancy. My citation says I violated VC 23123.5, while the court document says I violated VC 23123 only. Now, these are two different laws concerning the use of cell phones while driving. 23123 is hands-free, while the former is about texting while driving. In 23123.5, subsection (C) clearly states "(c) For purposes of this section, a person shall not be deemed to be writing, reading, or sending a text-based communication if the person reads, selects, or enters a telephone number or name in an electronic wireless communications device for the purpose of making or receiving a telephone call." That was my original argument in front of the judge, that I was in fact dialing my phone, and at a stop light at that. But now I know why I was found guilty by him- it was because he saw I violated 23123, and not 23123.5. I'm going to go in front of him again and appeal. Do you think i have a chance?

 

[demurringdude]

A judge cannot change the charge, ever. Nobody can change the charge after you enter a plea.

In this case, it is not so clear. Your verdict was entered as a violation of VC23123. That could just be a general description of anything and everything contained in 23123, including 23123.5.

If your verdict had been more specific, say 23123.4 for example, then you would have a stronger argument that the court acted outside its power. But I think the 23123 description could be argued to cover the whole lot, including any subsection.

But I would still appeal, based on the fact that court found incorrectly from the facts.

 

[sashatlhs]

yes, but he can vacate the charge.

23123.5 is a subsection, but I was not cited for 23123 AND 23123.5, just 23123.5. And the courts made a mistake a found me guilty under something I was not even cited for in the first place.

 

[I_Got_Banned]

You'll have to request to review the court file, specifically, the court record as to what charge was read to you by the judge at the arraignment. If you were arraigned on 23123, and later tried and convicted of the same charge, then you're going to be up against a brick wall to get anything changed. if on the other hand you were arraigned on a 23123.5 charge and then later tried and convicted of a 23123 charge (although I don't see how that could happen), then you'll have some recourse.

I'm going to go in front of him again and appeal.

And that (again, as you were told in your other thread) is far from how an appeal is made!

 

[justalayman]

" That was my original argument in front of the judge, that I was in fact dialing my phone, and at a stop light at that.

so, you admitted you were guilty of VC 23123. What's the problem?

And the courts made a mistake a found me guilty under something I was not even cited for in the first place.

and the problem with that is? You can be charged (I believe) up to a year after the fact.

 

[davew128]

so, you admitted you were guilty of VC 23123. What's the problem?

Suggest you read the OP's original thread and you will see that the consensus of most posters, CHP, and the CA DMV is that he is NOT guilty of VC 23123.

 

[justalayman]

Suggest you read the OP's original thread and you will see that the consensus of most posters, CHP, and the CA DMV is that he is NOT guilty of VC 23123.

but the judge believed him guilty of VC 23123 and I agree with the judge that rendered the verdict.

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.
(b) A violation of this section is an infraction punishable by a
base fine of twenty dollars ($20) for a first offense and fifty
dollars ($50) for each subsequent offense.
(c) This section does not apply to a person using a wireless
telephone for emergency purposes, including, but not limited to, an
emergency call to a law enforcement agency, health care provider,
fire department, or other emergency services agency or entity.
(d) This section does not apply to an emergency services
professional using a wireless telephone while operating an authorized
emergency vehicle, as defined in Section 165, in the course and
scope of his or her duties.
(e) This section does not apply to a person driving a schoolbus or
transit vehicle that is subject to Section 23125.
(f) This section does not apply to a person while driving a motor
vehicle on private property.
(g) This section shall become operative on July 1, 2011.

I saw nothing concerning the CHP stating they did not believe he was not guilty of the 23123. Just because they didn't cite the 23123 does not mean they believe he is not guilty of it.

as to the DMV: where does it say the DMV believes he is not guilty of 23123?

Read 23123. It is obvious he is guilty of 23123 and he admitted it in court. I don't see a problem.

If you are going to try to use the argument of what it states in 23123.5:

"(c) For purposes of this section, a person shall not be deemed to be writing, reading, or sending a text-based communication if the person reads, selects, or enters a telephone number or name in an electronic wireless communications device for the purpose of making or receiving a telephone call."

You would be wrong. That section does not state it is legal to dial a phone, it says that dialing a phone as opposed to using it to send a text message means it is not a violation of 23123.5.

So, then refer to 23123 (posted above) and make the determination as to whether OP is guilty of 23123 or not. I say he is and was properly found guilty of the charge.

and to throw more confusion in this: in the OP's other thread regarding this issue, he specifically states he was cited for VC 23123(a).

https://forum.freeadvice.com/speeding-other-moving-violations-13/guilty-dialing-while-driving-561046.html

If you will read the other thread, you will see there is confusion over the intent of the law and since it went into effect just recently, I suspect it is going to be a judges decision until a case gets taken to a higher court for review.

 

[Free_Advice]

so, you admitted you were guilty of VC 23123. What's the problem?

I think the OP is arguing that the charge was 23123.5 , not 23123. Its a valid point.

Why not argue instead of paying if one is so inclined? I get out of some tickets because of these issues ... the law is the law if the gov't cannot charge you properly then there is no shame in getting out of the punishment, even if one is guilty of a different charge.

 

[justalayman]

I think the OP is arguing that the charge was 23123.5 , not 23123. Its a valid point.

Why not argue instead of paying if one is so inclined? I get out of some tickets because of these issues ... the law is the law if the gov't cannot charge you properly then there is no shame in getting out of the punishment, even if one is guilty of a different charge.

In his other thread, while he stated he was cited for texting while driving, he stated it was a violation of VC 23123(a).

Guilty of Dialing while Driving

California
I recently got a ticket for "texting while operating a motor vehicle", which is a violation of VC 23123(a) in California. I was actually dialing my phone while at a stop light to call my father. My phone is equipped for hands-free while talking, but not for dialing the phone. I plead not guilty and went in for the hearing. After the sergeant who pulled me over told his side of the story, I told mine very concisely and descriptively, explaining to the commissioner that I was dialing my phone which is not a violation of the law. Furthermore, I was at a stoplight, so I was not endangering anyone.

In this thread OP states the citation included VC 23123.5 but in the other thread, OP said nothing of the sort and stated the charge was a violation of VC 23123(a) (but cited a section of VC 23123.5). I think OP is confused.

I do not know if it is possible in California but I do know that in some states a charge can be amended in court on the fly such as the OP described happened in this thread. OP did admit guilt to VC 23123(a).

 

[davew128]

but the judge believed him guilty of VC 23123 and I agree with the judge that rendered the verdict.



I saw nothing concerning the CHP stating they did not believe he was not guilty of the 23123. Just because they didn't cite the 23123 does not mean they believe he is not guilty of it.

as to the DMV: where does it say the DMV believes he is not guilty of 23123?

Read 23123. It is obvious he is guilty of 23123 and he admitted it in court. I don't see a problem.

If you are going to try to use the argument of what it states in 23123.5:

You would be wrong. That section does not state it is legal to dial a phone, it says that dialing a phone as opposed to using it to send a text message means it is not a violation of 23123.5.

So, then refer to 23123 (posted above) and make the determination as to whether OP is guilty of 23123 or not. I say he is and was properly found guilty of the charge.

and to throw more confusion in this: in the OP's other thread regarding this issue, he specifically states he was cited for VC 23123(a).

https://forum.freeadvice.com/speeding-other-moving-violations-13/guilty-dialing-while-driving-561046.html

If you will read the other thread, you will see there is confusion over the intent of the law and since it went into effect just recently, I suspect it is going to be a judges decision until a case gets taken to a higher court for review.

Reread the thread and linked FAQ's from CHP and DMV and post back with your new answer after you realize the error you made in reading the law and why you made that error.

Q: Are there exceptions for dialing?
A: This law does not prohibit reading, selecting or entering a phone number, or name in an electronic wireless device for the purpose of making or receiving a phone call. Drivers are strongly urged not to enter a phone number while driving.

 

[justalayman]

Reread the thread and linked FAQ's from CHP and DMV and post back with your new answer after you realize the error you made in reading the law and why you made that error.

Q: Are there exceptions for dialing?
A: This law does not prohibit reading, selecting or entering a phone number, or name in an electronic wireless device for the purpose of making or receiving a phone call. Drivers are strongly urged not to enter a phone number while driving.

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.

So, was the phone being used in a hands free configuration to listen or talk? NO. That means the law was violated.

Read Carl's take on it in the other thread as well. It isn't clear which way the courts will interpret the law in general but apparently this judge agrees with my interpretation of the statute.

do you also realize the the current statute took effect Jul 2011 and the link to the DMV in the other thread deals with a law from 2009? I don't know what was changed between 2009 and 2011 but this is from the current version of VC 23123:

(g) This section shall become operative on July 1, 2011.

 

[davew128]

So, was the phone being used in a hands free configuration to listen or talk? NO. That means the law was violated.

Umm, did you read the original post? He wasn't listening or talking.

do you also realize the the current statute took effect Jul 2011 and the link to the DMV in the other thread deals with a law from 2009 I don't know what was changed between 2009 and 2011 but this is from the current version of VC 23123:

That's right. You DON'T know. V C Section 23123 Hand Held Wireless Telephone Prohibited Use

The change has no bearing on the OP's citation. More to the point, if in fact his citation was 23123.5, he most DEFINITELY didn't violate the statute per the statute.
V C Section 23123.5 Electronic Wireless Communications Device Prohibited Use If we say its 23123, then I don't see how he wasn't doing hands free listening and talking since he wasn't listening or talking.

 

[justalayman]

davew128;2905477]Umm, did you read the original post? He wasn't listening or talking.

so?

That's right. You DON'T know.

and neither do you so trying to apply a statement that was made about a 3 year old law to a current law is not going to work unless you do know what has changed.

The change has no bearing on the OP's citation. More to the point, if in fact his citation was 23123.5, he most DEFINITELY didn't violate the statute per the statute.

what are you talking about? I said nothing about 23123.5.

and again, in one thread OP states he violated 23123(a) and in the other, 23123.5. OP needs to explain the inconsistency.

If we say its 23123, then I don't see how he wasn't doing hands free listening and talking since he wasn't listening or talking.

you make no sense. Of course we can say he wasn't doing hands free listening or talking if he wasn't listening or talking and that is the point; the statute allows the use of the phone only when using it in a hands free means of listening or talking. That means anything else is not allowed and he was doing something else.

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.

one thing never mentioned here either was: did the call connect? If so, where was the phone when the OP was speaking? Unless the cop was right behind the OP when he was dialing, there would have been more than adequate time for the call to connect prior to being pulled over.

 

[davew128]

so?

It's a required element of violating the law....which if you had read the statute would have known.

and neither do you so trying to apply a statement that was made about a 3 year old law to a current law is not going to work unless you do know what has changed.

Did you actually look at the link I posted? It tells what the law was and what it is now. Nothing relevant changed.

and again, in one thread OP states he violated 23123(a) and in the other, 23123.5. OP needs to explain the inconsistency.

For purposes of his appeal, yes. For purposes of whether he violated the law, no. Either way he didn't.

you make no sense. Of course we can say he wasn't doing hands free listening or talking if he wasn't listening or talking and that is the point; the statute allows the use of the phone only when using it in a hands free means of listening or talking. That means anything else is not allowed and he was doing something else.

No person with an IQ over 100 could possibly look at one statute for driving while on the phone (23123), look at its followup for texting (23123.5) and possibly say that holding the phone to dial, or holding the phone to see the incoming caller is a violation of 23123.

one thing never mentioned here either was: did the call connect? If so, where was the phone when the OP was speaking? Unless the cop was right behind the OP when he was dialing, there would have been more than adequate time for the call to connect prior to being pulled over.

I would think providing call records for the phone line in question if the call did not connect would be VERY helpful in the OP's defense.

 

[justalayman]

=davew128;2905784]It's a required element of violating the law....which if you had read the statute would have known.

I read the statute. In fact, I posted it.

Did you actually look at the link I posted? It tells what the law was and what it is now. Nothing relevant changed.

Yet of the three places that gave an opinion (DMV, CHP, judge in the case at hand) only one of them has an opinion that means anything in court and so far, that one person has decided OP has violated the law.

For purposes of his appeal, yes. For purposes of whether he violated the law, no. Either way he didn't.

then why don't you call the judge and tell him he is wrong. I'm sure he will then change the ruling because you did.

No person with an IQ over 100 could possibly look at one statute for driving while on the phone (23123), look at its followup for texting (23123.5) and possibly say that holding the phone to dial, or holding the phone to see the incoming caller is a violation of 23123.

The statement in 23123.5 concerns 23123.5. The verbiage in 23123 concerns 23123. What is stated in 23123.5 does not control the issues in 23123.

I would think providing call records for the phone line in question if the call did not connect would be VERY helpful in the OP's defense.

If the judge accepts your reading of the statute, it might but of course we do not have the officers input into the situation. That might be very enlightening.



how does a cop know if a person is texting or making a call? They actions look the same when watching the person using the phone.

The other thing that might have swayed the cop:

If the OP said anything while holding the phone it would look like he was talking on the phone. Then, if he did not have a bluetooth headpiece it might have caused the cop to believe there was no intent to use the phone in a hands free manner (although using a speaker phone would fulfill the requirements of the law as well).

Just so you know, I tend to agree that, most likely, the intent was not to prevent dialing a phone with one's hands. The problem is: until an appeals court rules on the issue, each judge is going to be free to decide it as they see fit. When the law was put into effect initially, there were not really any voice command dialing systems commonly used so if dialing was not intended to be allowed, they would have simply outlawed the use of cellphones while driving altogether.

Personally, I believe that when a phone must be manually dialed, it isn't that much different than when one is texting. They should both be outlawed while driving. Using a speed dial system isn't much better. The only thing that should be allowed is a verbal command calling system.