Officer Amends Citation with Additional Violation After I Plead Not Guilty

[ileventh]

What is the name of your state (only U.S. law)? California
I went to court today for a trial on charge CVC 23123(a), Handleheld Wireless Telephone - Prohibited Use. When the trial began, the officer asked if I was pleading guilty or not guilty. After I stated that I was pleading not guilty to the charge of CVC 23123(a), Handheld Wireless Telephone - Prohibited Use, the officer stated that he was amending the citation to include CVC 22350, Basic Speed Law, which would be a point on my record, versus the 23123(a) charge, which was no points. When the officer pulled me over I was absolutely not speeding. According to the officer's notes, which I reviewed, I was going 35-40 MPH in a 45 MPH zone. The officer never mentioned any other charge. However, when he stopped me he commented that he thought I was going too slowly due to being distracted by my phone, so I think he will claim I was going too slow, and creating unsafe conditions.

I maintain my innocence on the charge of 23123(a) and was simply looking to have my day in court, and I believe the charge of 22350 is absolutely baseless. I believe that the officer is trying to intimidate me and abuse his power. I thought it was my right to have my day in court and have a judge hear the case and make his decision on the charge against me, and I am fully ready to abide by whatever decision the judge makes. But apparently the price I have to pay to have my day in court is to risk getting convicted of an additional charge which there was no mention of until I declared in court that I was pleading Not Guilty to the CVC 23123(a) charge.

My trial (on two charges now) will be in two weeks. I'm very concerned that the officer will simply make up something related to the new charge, and then it will be my word against his, and the judge will likely side with him. He seems clearly out to get me for simply wanting to have my day in court. I'm looking for any recommendations about what I can do about this situation. Thanks.

 

[Zigner]

Were you using your cell phone improperly?

 

[ileventh]

Were you using your cell phone improperly?

I believe I was not in violation of the law, as I was using the phone with the handsfree Bluetooth in my car, and I simply picked up the phone to select the correct number to dial from my call log, then put it back down. On the CA DVM web page for "Cellular Phone Laws Effective July 1 2008" the question "Are there exceptions for dialing?" is answered with "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." So it seems to me that what I did was NOT illegal. However, the officer felt differently and said I could not pick up the phone at all. I figured I would go to court, state my case, and let the judge decide.

 

[Just Blue]

I believe I was not in violation of the law, as I was using the phone with the handsfree Bluetooth in my car, and I simply picked up the phone to select the correct number to dial from my call log, then put it back down. On the CA DVM web page for "Cellular Phone Laws Effective July 1 2008" the question "Are there exceptions for dialing?" is answered with "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." So it seems to me that what I did was NOT illegal. However, the officer felt differently and said I could not pick up the phone at all. I figured I would go to court, state my case, and let the judge decide.

Next time pull over to the side of the road to talk on the phone.

How often do YOU see reports of accidents due to phones being used on the news? 1...2...3..times a day?

 

[CdwJava]

The odd thing is that cell phones are not even a blip on the radar as the CAUSE (or even an associated factor) of collisions in CA. They may well be, but we really do not have any means of adequately collecting that data and virtually everyone denies using them in a collision.

As for the OP, I replied in another forum explaining that an officer at an arraignment is a highly unusual - nearly unheard of - thing. And, that in So. Cal. 22350 has been used successfully to argue that a safe speed at which to utilize a handheld device is 0 MPH (hence the reason for 22350 while even being UNDER the speed limit). The section is ebing used as a de facto unsafe driving statute.

 

[Just Blue]

The odd thing is that cell phones are not even a blip on the radar as the CAUSE (or even an associated factor) of collisions in CA. They may well be, but we really do not have any means of adequately collecting that data and virtually everyone denies using them in a collision.
.

Really? In my state LEO's have the ability to collect the data if someone was on the phone/texting at the time of an accident. Simple as contacting the cell phone company.

Yay Massachusetts!!

 

[CdwJava]

Really? In my state LEO's have the ability to collect the data if someone was on the phone/texting at the time of an accident. Simple as contacting the cell phone company.

Yay Massachusetts!!

This is only done in serious collisions that result in serious injury or death - and, then, only if there is reason to believe it might have been a factor and it can be an issue for prosecution. We haven't the capability or resources to routinely subpoena or write search warrants for this information hundreds of times each day.

We are required to collect the data, but, since this has been mandated collection data (about 10-12 years, I believe) I can count on one hand the number of times I have had any opportunity to write that a cell phone was in use ... and I'd still have two or three fingers left over. And, in none of those was the cell phone a factor (those drivers were not the cause of the collision so far as I recall).

 

[Zigner]

Really? In my state LEO's have the ability to collect the data if someone was on the phone/texting at the time of an accident. Simple as contacting the cell phone company.

Yay Massachusetts!!

Out here, that would require a warrant to be served on the cell phone company - I'm surprised it's not that way out there... Do the cell companies out your way really release private information so easily?

 

[Just Blue]

Out here, that would require a warrant to be served on the cell phone company - I'm surprised it's not that way out there... Do the cell companies out your way really release private information so easily?

Nope..they don't. But if a person is suspected of using their phone at the time of an accident LEO has cause to get a warrent.

A couple of months ago a T Driver said she was "sneezing" that caused her bus to hang off a bridge. She was on the phone. Per her cell Hx.

That story is googleable (Is that a word?? )

 

[Zigner]

Nope..they don't. But if a person is suspected of using their phone at the time of an accident LEO has cause to get a warrent.

Fair enough - but a little more involved than just contacting the cell company

 

[CdwJava]

Nope..they don't. But if a person is suspected of using their phone at the time of an accident LEO has cause to get a warrent.

A couple of months ago a T Driver said she was "sneezing" that caused her bus to hang off a bridge. She was on the phone. Per her cell Hx.

That story is googleable (Is that a word?? )

MOST collisions are not so serious. In those instances, it may be useful to obtain that information. However, as a note, the use of a cell phone would not be a cause of a collision ... the ACT that caused the collision would! A cell phone might be an associated factor, but the way the data is collected in most states, the cause of the collision in the scenario you pose would be something akin to a failure to maintain a lane, an unsafe turning movement, or an unsafe speed - NOT the use of a cell phone. That might be useful info for a civil attorney suing the company to have, or maybe for a prosecutor if charging the driver with a crime, but in most collisions it is not at all necessary for the police to have in order to determine the cause.

 

[Just Blue]

Fair enough - but a little more involved than just contacting the cell company

I admit...My post was poorly worded.

 

[CdwJava]

Fair enough - but a little more involved than just contacting the cell company

Oh, yeah ... search warrants take time, and while some companies will acquiesce with merely a subpoena, these days most are requesting a warrant as that protects their interests and their own ass.

 

[davew128]

Next time pull over to the side of the road to talk on the phone.

How often do YOU see reports of accidents due to phones being used on the news? 1...2...3..times a day?

More with pedestrians talking/texting than drivers.

 

[davew128]

Nope..they don't. But if a person is suspected of using their phone at the time of an accident LEO has cause to get a warrent.

A couple of months ago a T Driver said she was "sneezing" that caused her bus to hang off a bridge. She was on the phone. Per her cell Hx.

That story is googleable (Is that a word?? )

I'm familiar with the incident, but you've got property damage to the bridge as a result of the accident. Getting a warrant would have been justified.