Erroneous cell phone ticket

[Dann902]

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

My wife was pulled over by a motorcycle officer in our city claiming that she was using her cell phone while driving. She actually was not using her cell phone and was putting her hand against her head because she was in discomfort (she had a medical illness at that time). In fact, her cell phone was in a backpack in the trunk of our SUV. My wife offered the officer to search her for a cell phone but the officer refused and quickly gave her the ticket. The officer was not polite and was arrogant. My wife signed the ticket and now is awaiting to appear in court to hopefully contest the ticket. We are frustrated because this officer erroneously gives a ticket with no real proof other than it was her word (it was a female officer) against my wife's. My wife offered to be searched for a phone but the officer declined. We also have the cell phone statement that shows no incoming or outgoing call occurred during the alleged time of violation. Can this ticket be fought? We are law abiding citizens and my wife has never had a moving violation before. We don't know what to do Can anyone help with advice?

[Maestro64]

It is one of those subject tickets, the officer does not have to prove a thing, just making the claim is enough usually. I just saw the exact same thing on the TV show Speeders. It happen in CA the officer saw the person's hand to their ear and assumed the person was on a cell phone.

Well, he was but he had a bluetooth ear piece (not illegal) which he was cupping his hand over so he could hear. The person show him, but the officer still ran his license anyway. Luck for the officer the guy had an outstanding ticket.

Basically, the simple fact having your hand to your ear is enough probable cause to assume you were on a cell phone. forget the fact you could be using a headphone or scratching your ear.

She can go to court and challenge the fact he never actually saw a cell phone. Simple question like did you see a phone, if so what make or type of phone, like was it a flip phone or smart phone like a iphone or Blackberry. Or some other generic phone. Simple court room trick is to bring in a bunch of phones and ask him to identify which phone your wife was using at the time. Since you know he never saw it the more phones you bring reduces his chances at a lucky guess.

Just be prepared for the officer to say he saw a phone.

[Stevef]

Originally Posted by Maestro64

It is one of those subject tickets, the officer does not have to prove a thing, just making the claim is enough usually. I just saw the exact same thing on the TV show Speeders. It happen in CA the officer saw the person's hand to their ear and assumed the person was on a cell phone.

I wouldn't trust a TV show for legal advice, but that's just my uneducated opinion.

Simple court room trick is to bring in a bunch of phones and ask him to identify which phone your wife was using at the time. Since you know he never saw it the more phones you bring reduces his chances at a lucky guess.

I doubt a judge would think highly of a 'court room trick'.

Why not just stick with the truth?

[Maestro64]

I did not say the show was legal advice, just what happens, the officer even said it looks like the person is on the cell phone, as the reason to initiate the stop.

Yeah Judges do not like it when you call out a witness on the stand, but who's truth you going to believe the officers or the person in the car.

As it has been pointed out many time on this board, the officer is a so call "reliable expert witness" The only way to change the courts view of this perception is to case doubt, and if using a cell phone line up can do that and it works then it is no longer a trick.

The officer as "trained observer" should be able to do a couple of things, one clearly identify the person they gave a ticket, second, identify the car they were driving, third accurately articulate the fact about why they issued a ticket. In this case a cell phone was being used so he should be able to say he actually saw one and identify at least the type. I am not saying make model and serial number, just whether it was one of popular type that exist today. Visual ads in court usually work best so use them to your advantage.

Oh also be able to prove your phone is actually yours when the judge asks.