Enabling BlueTooth Feature by hand violation of 23123(a)? Contra Costa Appellate Div.

[PooperScooper]

What is the name of your state (only U.S. law)? CA

Cited for violation of 23123(a) - cell phone ticket, but I only used my hand to press the BlueTooth button and engage the call through bluetooth system.

Appealed conviction and this is the ruling from the Contra Costa Superior Court Appellate Division:

some stuff about evidence..."The trial court evidently accepted Appellant's uncontested testimony that his car is equipped with a system 'specifically designed and configured to allow hands-free listening and talking', as called for in the statute. The court, however, correctly concluded that the telephone was not being "used in that manner while driving".. On the contrary, Appellant was using his hands to manipulate his cell phone in order to reconnect it to the BlueTooth. His own testimony reveals that, at the time the officer oberved Appellant, the part of his equipment allowing hands-free operation (i.e., the vehicle's BlueTooth) was not in operation. Only the actual cell phone was in ooperation, and Appellant was required to use his hands to operate it. That is not hands-free operation.

Appellant relies on People v. Spriggs (2014) 224 Cal.App.4th 150. Spriggs held that 23123(a) is not violated by using a cell phone for some function other than "listening and talking", asuch as checking a map. That does not help Appellant, however. The evidence strongly suggests, and the trial court could reasonably infer, that Appellant was indeed using his cell phone to conduct a phone call, as opposed to some other function such as checking a map. Appellant argues that all his hands were doing was reconnecting his cell phone to his Bluetooth, not "listening and talking". That proves too much: no one literally uses his or her hands to "listen and talk" on a cell phonewhich can be done only with ears and voice [no ****. missinterpretation. I didn't state it that way]. The reference to hands-free use, rather, refers to those things that someone uses one's hands for in connection with conducting a cell phone conversation, such as dialing, holding the phone up to one's ear, or adjusting the volume. Manually reconnecting an existing phone call to a BlueTooth system also fits into that category."

WTF? This is isn't what People v. Spriggs (2014) 224 Cal.App.4th 150 states.

..."According to legislative analyses, the amendment to subdivision (c) of section
23123.5 was needed because �the predominant technology in use now typically requires
that the driver physically touch a speaker phone or other wireless communication device
(e.g., Bluetooth speaker) to initiate or end contact with the other party,� which was a
technical violation of existing law. (Assem. Com. on Transportation, Analysis of Assem.
Bill No. 1536, as introduced Jan. 24, 2012, p. 1.) A �Fact Sheet� on the bill explained
that its aim was to �clarify the use of hands-free devices while driving and still protecting
the freedom to communicate,� and �nder current law it�s illegal to physically touch
your electronic device to initiate or end a call. AB 1536 will simply allow a driver to
touch their device to use the necessary functions to make or receive a call and still be
protected under the law.� (Fact Sheet, AB 1536 (Miller), Hands-Free Devices.) If
section 23123(a) prohibits all hand-held uses of wireless telephones, this amendment
would be ineffective, as section 23123.5 would not be violated by touching a wireless
communications device to initiate or receive calls on a wireless telephone, but such

8 Section 23123.5, subdivision (a) now provides: �A person shall not drive a motor
vehicle while using an electronic wireless communications device to write, send, or read
a text-based communication, unless the electronic wireless communications device is
specifically designed and configured to allow voice-operated and hands-free operation to
dictate, send, or listen to a text-based communication and it is used in that manner while
driving.�


actions would violate section 23123(a). Such a result flies in the face of the expressed
intent of ensuring such actions do not violate the law.
In sum, based on the legislative history of section 23123 and the statute�s
language, as well as the Legislature�s subsequent enactments of sections 23123.5 and
23124, we conclude that section 23123(a) does not prohibit all hand-held uses of a
wireless telephone. Instead, it prohibits �listening and talking� on the wireless telephone
unless the telephone is used in a hands-free mode. Accordingly, Spriggs did not violate
the statute when he held his cellular telephone in his hand and looked at a map
application while driving and his conviction must be reversed."


What am I missing???

 

[justalayman]

What are you missing?



At this point probably $200-$300.


.5 does not apply to you. It refers to uses of an electronic devices other than a phone.

Then what you were cited for;

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.

As the court said, you touched your phone in the action of using it as a phone. Not allowed


Personally I don't agree with how the law is applied but I can see how they have applied it as they have


I would search for case law regarding the issue. You surely are not the first person to have dealt with this.

I would think the law needs additional clarification.

 

[PooperScooper]

haha, yeah, and a little time.

Back to the case at point, I didn't touch the phone in the action of using it as a phone, rather I touched the phone to engage the bluetooth. As stated by the appellate division response, a person can't engage in a conversation with their hands, only with their ears and voice. And according to the 4th district appeals court, .5 was specifically amended to allow for people to touch their phones, stating

"AB 1536 will simply allow a driver to touch their device to use the necessary functions to make or receive a call and still be protected under the law.� (Fact Sheet, AB 1536 (Miller), Hands-Free Devices. If section 23123(a) prohibits all hand-held uses of wireless telephones, this amendment would be ineffective, as section 23123.5 would not be violated by touching a wireless communications device to initiate or receive calls on a wireless telephone, but such actions would violate section 23123(a). Such a result flies in the face of the expressed intent of ensuring such actions do not violate the law."

The ruling summarizes, "In sum, based on the legislative history of section 23123 and the statute�s language, as well as the Legislature�s subsequent enactments of sections 23123.5 and 23124, we conclude that section 23123(a) does not prohibit all hand-held uses of a wireless telephone. Instead, it prohibits �listening and talking� on the wireless telephone unless the telephone is used in a hands-free mode.

Again, I didn't use the phone for listening and talking while the phone was disengaged from bluetooth. The appellate ruling makes it clear that 23123.5 and 23124 add to the legislative intent that physically touching the phone to engage a call and activate bluetooth doesn't violate 23123(a).

What are you missing?



At this point probably $200-$300.


.5 does not apply to you. It refers to uses of an electronic devices other than a phone.

Then what you were cited for;

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.

As the court said, you touched your phone in the action of using it as a phone. Not allowed


Personally I don't agree with how the law is applied but I can see how they have applied it as they have


I would search for case law regarding the issue. You surely are not the first person to have dealt with this.

I would think the law needs additional clarification.

 

[justalayman]

.5 specifically speaks to using the phone for text communicators only. You are trying to apply .5 to

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.

Which is clear in its Statement: and is used in that manner

You touched your phone when using it as a phone. By the plain English of the statute that is forbidden.

 

[PooperScooper]

The 4th district court of appeals is applying .5 to 23123(a), please see the quotes from People vs. Spriggs (2014).

How was I using my phone "as a phone"? The Court defines "using the phone" as "listening and talking". I wasn't "listening and talking" when I touched the phone to engage the bluetooth.

.5 specifically speaks to using the phone for text communicators only. You are trying to apply .5 to

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.

Which is clear in its Statement: and is used in that manner

You touched your phone when using it as a phone. By the plain English of the statute that is forbidden.

 

[justalayman]

Your phone was not configured to use it in a hands free manner when you were connecting to the call. The bolded section in your first post said exactly that.

But, what about ab 1536? Have your read it? It amends .5 and .5 addresses only text messaging.

I didn't see the court define using the phone as talking and listening only. Pretty sure they didn't say that since a huge reason for this law at all was due to dialing a phone. That was one of the huge problems with using a cellphone in a car.

If I am going to use Bluetooth, it is functioning prior to any incoming or outgoing call. My phone is then configured to be used as a hands free device. You, on the other hand, did not have your phone already configure to be used hands free so to connect to the incoming call you first had to set the configuration so it could be used as hands free. While extremely technical, that is where they got you.

 

[PooperScooper]

As stated by the appellate division (County Court) and quoted above, "The trial court evidently accepted Appellant's uncontested testimony that his car is equipped with a system 'specifically designed and configured to allow hands-free listening and talking', as called for in the statute." There was also evidence, not mentioned, showing that my phone was configured to engage in hands-free communication. Additionally, there was testimony that that the phone and car were in hands-free mode before being spontaneously disconnected. At which point, the bluetooth button was engaged by hand.

ab1536 was implemented specifically to address the flaw in .5; to protect the right to communicate via touching your phone. The 4th district court of appeals emphasizes this fact. The quote I provided above explains the relationship between ab1536, 23123.5, and 23123(a), please see the original post.

Right, there are more uses of the phone than just listening and talking, so when you say "You touched your phone when using it as a phone.", I wonder what you mean by "using your phone". I assumed you meant "listening and talking".

Your phone was not configured to use it in a hands free manner when you were connecting to the call. The bolded section in your first post said exactly that.

But, what about ab 1536? Have your read it? It amends .5 and .5 addresses only text messaging.

I didn't see the court define using the phone as talking and listening only. Pretty sure they didn't say that since a huge reason for this law at all was due to dialing a phone. That was one of the huge problems with using a cellphone in a car.

If I am going to use Bluetooth, it is functioning prior to any incoming or outgoing call. My phone is then configured to be used as a hands free device. You, on the other hand, did not have your phone already configure to be used hands free so to connect to the incoming call you first had to set the configuration so it could be used as hands free. While extremely technical, that is where they got you.

 

[drruthless]

You are missing something.

What is the name of your state (only U.S. law)? CA

Cited for violation of 23123(a) - cell phone ticket, but I only used my hand to press the BlueTooth button and engage the call through bluetooth system.

Appealed conviction and this is the ruling from the Contra Costa Superior Court Appellate Division:

some stuff about evidence..."The trial court evidently accepted Appellant's uncontested testimony that his car is equipped with a system 'specifically designed and configured to allow hands-free listening and talking', as called for in the statute. The court, however, correctly concluded that the telephone was not being "used in that manner while driving".. On the contrary, Appellant was using his hands to manipulate his cell phone in order to reconnect it to the BlueTooth. His own testimony reveals that, at the time the officer oberved Appellant, the part of his equipment allowing hands-free operation (i.e., the vehicle's BlueTooth) was not in operation. Only the actual cell phone was in ooperation, and Appellant was required to use his hands to operate it. That is not hands-free operation.

Appellant relies on People v. Spriggs (2014) 224 Cal.App.4th 150. Spriggs held that 23123(a) is not violated by using a cell phone for some function other than "listening and talking", asuch as checking a map. That does not help Appellant, however. The evidence strongly suggests, and the trial court could reasonably infer, that Appellant was indeed using his cell phone to conduct a phone call, as opposed to some other function such as checking a map. Appellant argues that all his hands were doing was reconnecting his cell phone to his Bluetooth, not "listening and talking". That proves too much: no one literally uses his or her hands to "listen and talk" on a cell phonewhich can be done only with ears and voice [no ****. missinterpretation. I didn't state it that way]. The reference to hands-free use, rather, refers to those things that someone uses one's hands for in connection with conducting a cell phone conversation, such as dialing, holding the phone up to one's ear, or adjusting the volume. Manually reconnecting an existing phone call to a BlueTooth system also fits into that category."

WTF? This is isn't what People v. Spriggs (2014) 224 Cal.App.4th 150 states.

..."According to legislative analyses, the amendment to subdivision (c) of section
23123.5 was needed because �the predominant technology in use now typically requires
that the driver physically touch a speaker phone or other wireless communication device
(e.g., Bluetooth speaker) to initiate or end contact with the other party,� which was a
technical violation of existing law. (Assem. Com. on Transportation, Analysis of Assem.
Bill No. 1536, as introduced Jan. 24, 2012, p. 1.) A �Fact Sheet� on the bill explained
that its aim was to �clarify the use of hands-free devices while driving and still protecting
the freedom to communicate,� and �nder current law it�s illegal to physically touch
your electronic device to initiate or end a call. AB 1536 will simply allow a driver to
touch their device to use the necessary functions to make or receive a call and still be
protected under the law.� (Fact Sheet, AB 1536 (Miller), Hands-Free Devices.) If
section 23123(a) prohibits all hand-held uses of wireless telephones, this amendment
would be ineffective, as section 23123.5 would not be violated by touching a wireless
communications device to initiate or receive calls on a wireless telephone, but such

8 Section 23123.5, subdivision (a) now provides: �A person shall not drive a motor
vehicle while using an electronic wireless communications device to write, send, or read
a text-based communication, unless the electronic wireless communications device is
specifically designed and configured to allow voice-operated and hands-free operation to
dictate, send, or listen to a text-based communication and it is used in that manner while
driving.�


actions would violate section 23123(a). Such a result flies in the face of the expressed
intent of ensuring such actions do not violate the law.
In sum, based on the legislative history of section 23123 and the statute�s
language, as well as the Legislature�s subsequent enactments of sections 23123.5 and
23124, we conclude that section 23123(a) does not prohibit all hand-held uses of a
wireless telephone. Instead, it prohibits �listening and talking� on the wireless telephone
unless the telephone is used in a hands-free mode. Accordingly, Spriggs did not violate
the statute when he held his cellular telephone in his hand and looked at a map
application while driving and his conviction must be reversed."


What am I missing???

Yes, I believe you have missed something.
To reestablish that Bluetooth connection, are you or are you not required to divert your eyes from the road ahead of you and focus your attention the cell phone that you hold in your hand ?
Are you willing to spend your life or the lives of others so that you can save the ten or fifteen minuets it would have taken to pull over and do what you had to do? Granted, the chances of winning the lottery are astronomical, something happening while you take your eyes off the road for even the briefest of moments,
are not.
.._________________________
~ Helping to rid the world of stupidity,
Starting with my own.

 

[HighwayMan]

Are you willing to spend your life or the lives of others so that you can save the ten or fifteen minuets it would have taken...

To reconnect the Bluetooth? More like thirty seconds.

 

[PooperScooper]

It takes less than 1 or 2 seconds and can be done without taking your eyes off the road. I'm not sure what kind of phone you are using, but on mine, there is a button called "BlueTooth" that is displayed when a call is connected. This allows you to turn on the BlueTooth feature and hence re-engage.

You may bring up a good point, however. While you misunderstood, or do not fully understand, the context of the term "re-engage", the Court may have interpreted it similarly and I should have fully outlined what I meant with the term. The problem is, I don't think they did. They specifically state, "the reference to hands-free use, rather, refers to those things that someone uses one's hands for in connection with conducting a cell phone conversation, such as dialing, holding the phone up to one's ear, or adjusting the volume. Manually reconnecting an existing phone call to a BlueTooth system also fits into that category." If you read People vs. Spriggs (2014), there is an interpretation of legislative intent within ab 1536 and 23123.5, stating that the bill was enacted to enforce the right to communicate by dialing numbers. Clearly, the Court missed this interpretation because they compared dialing(entering a number) to "talking and listening" on the phone while holding it to your ear, which is a violation of 23123(a). The Court then tries to associate the act of pressing a button to engage bluetooth into that falsely associated group. The law doesn't support these associations.

People v. Spriggs (2014) 224 Cal.App.4th 150
"Section 23123.5’s exemption for reading, selecting or entering a “telephone
number or name in an electronic wireless communications device for the purpose of
making or receiving a telephone call” (§ 23123.5, subd. (c)), provides further support for
the conclusion that section 23123(a) does not prohibit all hand-held uses of a wireless
telephone. If section 23123(a) prohibited all hand-held uses of a wireless telephone, the
exemption would be unnecessary; however, the exemption was included because the
Legislature wanted to ensure that a driver making or receiving a telephone call in
compliance with section 23123(a) would not violate the texting statute, section 23123.5,
when doing so."

Yes, I believe you have missed something.
To reestablish that Bluetooth connection, are you or are you not required to divert your eyes from the road ahead of you and focus your attention the cell phone that you hold in your hand ?
Are you willing to spend your life or the lives of others so that you can save the ten or fifteen minuets it would have taken to pull over and do what you had to do? Granted, the chances of winning the lottery are astronomical, something happening while you take your eyes off the road for even the briefest of moments,
are not.
.._________________________
~ Helping to rid the world of stupidity,
Starting with my own.

 

[Zigner]

Why did you have to engage the bluetooth at all?

 

[justalayman]

You got cited for 23(a), not .5. I read what .5 says but it is applicable to .5. It says you cannot be charged for .5 if you are dialing or anything else it specifies. That does not mean you cannot be charged for 23(a) which is what you were charged for. In 23(a) it specifies you cannot use your phone unless in a hands free manner. Yours was not in a hands free manner proven by your own admission.

I do not agree the legislative intent was to allow you to dial numbers, where it requires the use of your hands. Dialing is more distracting than talking so why would they allow the portion of the phone call that causes the greatest share of the accidents?

And if you can poke your Bluetooth icon without looking at it you have more skills than a blind man.

 

[PooperScooper]

@Zigner - My phone and car bluetooth pairing disconnects randomly. I don't know why. I've tried deleting both devices from their respective memory and reinstalling, but it eventually happens again. It also seems to be a problem with other people I've spoken to, who have different phone/car setups. My phone didn't do this with another car I had it paired to, so I imagine it has to do with my main vehicle

@justalayman - while I respect your interpretation of 23123.5 in terms of morality, I do not agree with it, nor does the 4th District Court of Appeals. And I still don't know what you mean by "use your phone". I'm sure you will agree that, according to the current law, you can use your phone for all sorts of things while driving, while it's in hand, and not using hands-free. 23(a) says you can't "listen and talk" while not in hands-free mode. This is exactly why People v. Spriggs (2014) ruling reversed the original charge. Why do you think otherwise? I've addressed the court's interpretation of the relation between 23123(a) 23123.5, and ab 1536. In regards to your morality viewpoint, here is how District Court handles it...


People v. Spriggs (2014) 224 Cal.App.4th 150

"...There is growing public concern regarding the safety implications of the
widespread practice of using hand-held wireless telephones while operating motor
vehicles.
�(e) It is in the best interests of the health and welfare of the citizens of the state to
enact one uniform motor vehicle wireless telephone use law that establishes statewide
safety guidelines for use of wireless telephones while operating a motor vehicle.� (Stats.
2006, Reg. Sess. 2005-2006, ch. 290, � 2, (Sen. Bill No. 1613, 2 West�s Cal. Session
Laws 2006, p. 1954).)
13.
telephone� includes all conceivable uses, then it would be a statutory violation for a
driver to merely look at the telephone�s display if the telephone was not designed and
configured to allow hands-free listening and talking. It would also be a violation to hold
the telephone in one�s hand, even if configured for hands-free listening and talking, and
look at the time or even merely move it for use as a paperweight. The People do not
point to anything in the legislative history to suggest the Legislature intended such a
broad prohibition.
...

When the legislative history of section 23123 is considered in conjunction with
section 23123(a)’s language, it is apparent that the Legislature both understood and
intended the statute be limited to only prohibit a driver from holding a wireless telephone
while conversing on it. It did not intend to extend the prohibition to other uses of a
wireless telephone and most certainly did not intend to prohibit the use at issue here,
namely looking at a map application while holding the telephone and driving.
4. The Legislature’s subsequent enactments of sections 23124 and 23123.5 confirm
it intended section 23123(a) to only prohibit a driver from holding a wireless telephone
while conversing on it..."


Clearly, whether or not I look at the phone to press the bluetooth button is moot, though my phone skills are quite adept.

 

[justalayman]

Well, apparently the two courts you have been in believe the law does not agree with your interpretation. Constantly repeating yourself won't change that and it won't change my opinion.






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.

That does not say this;
23(a) says you can't "listen and talk" while not in hands-free mode. It does not say "only when talking and listening. It says it must be configurable FOR hands free talking and listening AND used in that manner while driving.

So how does that suport your statement:


but I only used my hand to press the BlueTooth button and engage the call through bluetooth system





So your phone was not configured in hands free mode when you went to accept the call (use the phone) That is the violation.

Sprigs:

It would also be a violation to hold
the telephone in one�s hand, even if configured for hands-free listening and talking, and
look at the time or even merely move it for use as a paperweight. The People do not
point to anything in the legislative history to suggest the Legislature intended such a
broad prohibition.


Do you see anything about touching it to activate the phone, turn on the Bluetooth or anything else? The statement was that uses that are not related to the use of the phone as a phone should not be prohibited. What you did was using the phone as a phone.


If you want to expand that to your violation, get out your wallet and have at it. Maybe you'll make new law.

 

[OHRoadwarrior]

Software incompatibility is not the courts problem. What is clear by your own admission is you broke that law.