Cell Phone Ticket - Driving Includes Being Stopped at Light?

On December 28, 2009, a Richmond, California motorcycle officer pulled up at a red light alongside Mr. Carl Nelson.  The officer watched Nelson, who was sitting behind the wheel of his car, open his flip-style cell phone, dial a number and put the phone to his ear while holding the phone in his left hand.
Brief Synopsis: One can be ticketed for using a cell phone while driving even if one is using the cell phone while stopped and facing a red light.
Nelson then noticed the police officer alongside him and quickly ended the call.  The light then turned green, Nelson pulled forward, the officer activated his flashing light and pulled Nelson over.

The officer cited Nelson for a violation of California Vehicle Code § 23123(a), which reads:

        A person shall not drive a motor vehicle while using a wireless
        telephone unless that telephone is specially designed and
        configured to allow hands-free listening and talking, and is used
        in that manner while driving.

Nelson then fought the ticket in traffic court, arguing that because his car was not moving when he used his cell phone, he was not driving.  Nelson relied upon Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753, wherein an individual was cited for DUI and the term “drive” was distinguished.

In Mercer, a person was found asleep, slumped over her steering wheel in a legally parked car.  The car’s engine was on and it was on a residential street.  The defendant in Mercer claimed her conduct did not fit the definition of “driving” and the court there agreed.   The court reasoned that defendant did not impart “volitional movement” to the car, so she was not driving. 

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This particular case,  Mercer, is a well-known case by many judges and defense attorneys because police officers often do make early morning DUI arrests where the suspect is found passed out behind the wheel of a parked car, often with his or her lights on still and maybe out of gas.

Nelson lost in traffic court and was ordered to pay a fine, including penalties, of $103.  The appellate division of the superior court affirmed the conviction.

Nelson then appealed to the First Appellate District.  In People v. Nelson (2011 DJDAR 16531), decided just this week on November 15, 2011, the court affirmed the lower courts.  In its ruling, the court held that the facts in Mercer, a DUI case, were quite different than those from Nelson, a driving with a cell phone case.

In Nelson, the court found, Nelson was operating his phone while in a “fleeting pause” at the red light from driving, so he was nevertheless driving.  After all, his car was not parked like in Mercer, but still in gear to drive.  Moreover, the Court considered the narrow and strained interpretation of drive that Nelson urged as possibly resulting in numerous and significant public safety hazards on public roadways, as drivers could use their cell phones momentarily in even stop and go traffic, at stop signs, at pedestrian crossings, etc.  This would increase the number of distracted drivers, something the statute intended to prevent, and possibly encourage drivers to stop for prolonged periods at stop signs, etc., to continue their calls.

For more information about traffic stops, click on the following articles:
  1. Good Faith Exception to Officer’s Execution of an Improper Search Warrant Does Not Have Similar Application to an Improper Traffic Stop
  2. Can an Anonymous Cell Phone Call to Police Support a Traffic Stop for DUI?
  3. Traffic Stop Proper Where Officer Sees Driver Texting While Parked, but Then Move While Making “Similar Movements”
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