Tips on How to Fight a California Cell Phone Ticket - Vehicle Code § 23123

If you receive a traffic ticket for using your cell phone while driving in violation of  California Vehicle Code section 23123, subdivision (a), before you rush to pay the ticket, you may want to consider if you have any available defenses. Here are a few tips you can use.  

VC  23123

California Vehicle Code section 23123, subdivision (a) states, “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.” Thus, the elements of this violation appear to be (a) a person, (b) shall not drive a motor vehicle, (c) while using (d) a wireless telephone (e) UNLESS that telephone is specifically designed and configured to allow hands-free listening and talking and is used in that manner. Thus, if you can convince a traffic court judge that any of these elements are missing from the facts in your case or that the exception applies, your ticket can be dismissed.

If you decide to fight the ticket and the officer does not appear for your court appearance, your case will likely be dismissed. Also, if you challenge the ticket by written declaration, as stamped on the back of your ticket, the ticket will likely be dismissed if the officer does not submit his or her declaration to the court on time and you have adequately contested the ticket in your written declaration.

Potential defenses to a VC 23123 ticket

If you fight the ticket by going to court and the officer appears in court, you will need to be able to challenge the officer’s claim that you violated this traffic code section.  Four potential defenses are listed below.   

(1) Using cell phone to read a map, not using phone to talk 

If you were reading a map, instead of using the device as a phone to communicate a message, it used to be that you did not violate this vehicle code section according to one appellate court decision.  In People v. Spriggs (2014) 224 Cal.App. 4th 150, the defendant was stopped at a red light and a motorcycle officer gave him a ticket for violation Vehicle Code section 23123, subdivision (a). The trial court and appellate division upheld the ticket but the defendant appealed to the Court of Appeal. The Court of Appeal explained 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, the Court of Appeal held that 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.

But beginning on January 1, 2017, the statute changed. Now, the map defense may  be more difficult because it is now it will be illegal to hold and operate electronic devices, including a smart phone, while driving. Although a smart phone may be used, there are now restrictions. 

First, the device must be mounted on the dash, the center console or in one of the lower corners of the windshield. It cannot be placed anywhere that impairs a driver's view or blocks the possible deployment of airbags.

Second, drivers must use hands-free technology, such as a voice command or Bluetooth. If you have to touch a screen, the new law only allows for “the motion of a single swipe or tap of the driver’s finger.”

Only drivers 18 or older can use hands-free devices; drivers under 18 cannot. It’s also still illegal for drivers to send text messages.

(2) making an emergency call 

Additionally, other subdivisions of Vehicle Code section 23123 offer some defenses to this ticket you may be able to use: 

*  Subdivision (c) states, “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.” Thus, if you were not listening to a call, but instead making a call to 9-1-1 or another emergency number was being called and you can provide proof of this from your cell phone records, this is a complete defense and your ticket will likely be dismissed by the traffic court judge.

*  Subdivision (d) states, “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.” If this section applies to you, you need to bring this to the traffic court judge’s attention and your ticket can be dismissed.

(3) Driving a school bus or transit vehicle 

Subdivision (e) states, “ This section does not apply to a person driving a schoolbus or transit vehicle that is subject to Section 23125. Thus, if you were driving one of these types of vehicles, this might be a valid defense you can use.

(4) You were on private property.  

Subdivision (f) states, “This section does not apply to a person while driving a motor vehicle on private property.” If you can show you were on private property when you received your ticket, not a public street, road or highway, this can be a complete defense to your ticket and your ticket can be dismissed if you decide to fight the ticket by declaration or by going to court.

But I was stopped at red light is not an available defense

One defense you should not use is that you were stopped at a red light while talking on your cell phone and thus, you were not driving. This defense has already been rejected in People v. Nelson (2011) 200 Cal.App.4th 1083 (Nelson). In Nelson, the defendant challenged whether a driver’s use of a wireless telephone while stopped at a red traffic light constitutes use while driving within the meaning of the statute. (Id. at p. 1087.) The appellate court rejected the defendant’s argument that he was not driving because his car was stopped when he used his phone  and concluded the Legislature intended section 23123(a) “to apply to persons driving on our public roadways who, like defendant, may pause momentarily while doing so in order to comply with the rules of the road.” (Nelson, supra, 200 Cal.App.4th at p. 1087.)


Traffic ticket attorney 

Experienced traffic ticket attorneys are available to help you fight this traffic ticket. 

Fine for violating VC 23123 

Subdivision (b) states, “ 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. But this base fine is not your total fine because each court adds penalty assessments that differ by county, so the total fine will be about $162, maybe more, maybe less, depending on the county where you receive the ticket. Good luck. I hope this information helps to you to make an informed decision on how to handle your traffic ticket.

You want to plead guilty but lack the money to pay the fine or you just lost in court but can't afford to pay the fine. 

If you can't afford to pay the fine and can show the court that you are unable to pay the full amount on your traffic ticket, you may request the court to consider your ability to pay. However, you must appear in court to do this.  When you appear in court and plead “guilty” at arraignment, you may ask the courtroom Judge to consider your ability to pay and to reduce the fine to be paid. 

If you plead “not guilty,” after a trial and conviction, you may ask the courtroom Judge to consider your ability to pay in deciding the fine. (Veh. Code, § 42003(c).) 

Additionally, regardless of your plea, if you are ordered to pay a fine you may ask the court for an installment payment plan that is based on your ability to pay, or ask the court to approve community service due to financial hardship

copyright © 2016 Christine Esser

The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney- client relationship is only established when a written retainer has been signed.

Disclosure; If you click on the Amazon link below you will be directed to the Amazon website. This short blog post may not contain all the information you would want to have to be able to fight a traffic ticket successfully. If you are in California, for more information, we recommend Fight Your Ticket and Win - California. If you are not in California, we recommend, Beat Your Ticket.  Both can be obtained from Amazon by clicking on the links below. Good luck.  We have not received anything from the author, publisher, or manufacturer of any of these items for our recommendations, but we might receive a small commission if you make a purchase that will not increase your purchase price.  Thank you. 

Tips on How to Fight a Traffic Ticket for Speeding - CA Vehicle Code § 22349 (b)

If you drive regularly in California it is likely that at some point you will find yourself  with a speeding ticket.  One such ticket is found in Vehicle Code section 22349, subdivision  (b). This short article discusses some potential defenses, the methods you may use to contest the ticket, and the amount of fine you will be asked to pay if you do not contest the ticket and are found guilty of the violation. 

VC 22349 (b) 

Vehicle Code section 22349, subdivision (b) states, “Notwithstanding any other provision of law, no person may drive a vehicle upon a two-lane, undivided highway at a speed greater than 55 miles per hour unless that highway, or portion thereof, has been posted for a higher speed by the Department of Transportation or appropriate local agency upon the basis of an engineering and traffic survey. For purposes of this subdivision, the following
apply:

   (1) A two-lane, undivided highway is a highway with not more than
one through lane of travel in each direction.
   (2) Passing lanes may not be considered when determining the
number of through lanes.
   (c) It is the intent of the Legislature that there be reasonable
signing on affected two-lane, undivided highways described in
subdivision (b) in continuing the 55 miles-per-hour speed limit,
including placing signs at county boundaries to the extent possible,
and at other appropriate locations.

Tips to Fight a Speeding Ticket 

Here are some tips if you get a ticket for violating Vehicle Code section 22349, subdivision (b).

You can contest the ticket by requesting a court trial or by submitting a trial by declaration. If you request a court trial. and the officer does not appear for your court appearance, your  case will likely be dismissed.  Also, if you challenge the ticket by written declaration, as stamped on the back of your ticket, the ticket will likely be dismissed if the officer does not submit his or her declaration to the court on time and you have adequately contested the ticket in your written declaration. Also, if  you contest the ticket by asking for a court trial and you appear in court but the officer does not appear, your speeding ticket will likely be dismissed. That is why I always recommend a person to contest the ticket - you could get lucky and not have a trial or a ticket to pay. 

But if you fight the ticket by going to court and the officer appears in court, you will need to be able to challenge the officer’s calculation of your speed or establish that you were not the driver of the car that the officer clocked speeding or another defect in the ticket. 

 Motorcycle officers often appear in court on the scheduled date, so you may want to delay your trial date to the winter holidays or summer vacation time when many people schedule vacations or at least to a different date than the one scheduled on the ticket.

Challenging the officer’s calculation of your speed can be complicated, so we recommend that you get Fight Your Ticket in California to learn about the methods used to challenge the officer’s calculation of your speed. Also, Beat Your Ticket if you are in another state is also good. Also, you can hire an experienced traffic ticket attorney to help you fight this type of ticket.  Make certain you ask the attorney about  his or her experience challenging an officer’s calculation of speed by pacing, as well as by radar and laser devices.

But here are some basic tips if you want to fight this ticket by yourself.  If the officer relied on “pacing,” which means that  the officer was following your car and using his or her speedometer to calculate your speed, you can cross-examine the officer about how long the officer was following your vehicle.  If you know the officer was only following your vehicle for a short distance, and the officer admits to this, you can try to convince the traffic court judge that the officer’s speed was faster than your speed because the officer had to be to driving faster to catch up to your vehicle; thus, the speed the officer calculated was likely higher than the speed you were traveling and your ticket should be dismissed.

In United States v. Sowards (“Sowards”)  (4th Cir. 2012) 690 F.3d 583.  the Fourth District Court explains: "[T]he reasonableness of an officer's visual speed estimate depends, in the first instance, on whether a vehicle's speed is estimated to be in significant excess or slight excess of the legal speed limit. If slight, then additional indicia of reliability are necessary to support the reasonableness of the officer's visual estimate." In Sowards, the court found an officer's visual estimation that a car was traveling 75 m.p.h. in a 70 m.p.h. zone to be a "slight excess" requiring additional indicia of reliability. A California Court of Appeal adopted the reasoning of Soward in People v. Nice (“Nice”), Sixth District Court of Appeal, Case No.  H041847, May 26, 2016.  In Nice, a police officer estimated that a vehicle was traveling from 10 to 15 miles per hour over the speed limit of 25 m.p.h. and the officer stopped the vehicle for speeding, but the court of appeal found that no corroboration was needed.  Thus, if the traffic ticket in your case is closer to Soward than Nice, you can argue that corroboration of the officer's estimate of your speed is needed to find you guilty of the traffic violation.   

If the ticket is from an aircraft patrol vehicle, then both the aircraft patrol officer and the patrol unit that gave you the ticket needs to be in court to testify about how your speed was calculated if the officer did not independently pace your car and calculate your speed. Also, an aircraft operator may not be able to remember your particular vehicle and likely did not obtain your license plate information from the air.  You can ask that the traffic officer who issued your ticket to stand outside the courtroom while you question the aircraft operator about the details of your stop, such as the color of your vehicle, the license plate number, the make/model of the vehicle, etc.  It is possible that the aircraft operator may not remember these details and you could establish that there is insufficient evidence to convict you of speeding.

You can also try to challenge a radar reading or laser detector reading, but that is a more complicated endeavor.  We recommend that you read about how to do this in Fight your Ticket or Beat Your Ticket listed below.  These books explain how to cross-examine an officer and establish that a radar reading or laser reading may not have been accurate.  In general, you will want to show that the officer was not adequately trained to read the device and/or something interfered with the reading, usually another vehicle.

In general, a speed trap defense does not apply when you are accused of going over the maximum speed limit on a highway.

 Vehicle Code 22349 (b) fine cost

The penalty for this violation often depends on how much over the speed limit the citation claims you were speeding. The base fine for this violation is $35 if the citation claims you were traveling 1-25 miles per hour over 65.  But the base fine increases to $70 if the citation claims you were traveling 26 or more miles per hour over the 65 miles per hour speed limit. But that is the base fine and in California, penalty assessments are added to ticket infractions.

Penalty assessments vary depending on how fast you are claimed to have been going and which county you are in.   If you were going 1-15 miles over the speed limit, the fine with penalty assessments will be about $238, sometimes more, sometimes less, in 2016.  If the citation claims you were traveling 16-25 miles over 65, the fine with penalty assessments will be about $367.  If the citation claims you were traveling 26 miles or more over 65 mph, the fine with penalty assessments will be about $490.

In addition to the fine you will be required to pay, if you are found guilty of this traffic violation,  the DMV will add at least one penalty point to your driving record and this could cause your insurance rates to go up if you do not qualify for and attend traffic school. In general, you are eligible to attend traffic school if you have not attended a traffic school within the last 18 months. 

Good luck.  I hope this information helps you to make an informed decision on how to handle your traffic ticket.

copyright © 2016 Christine Esser

The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney- client relationship is only established when a written retainer has been signed.


Disclosure; If you click on the Amazon link below you will be directed to the Amazon website.  This short blog post may not contain all the information you would want to be able to fight a traffic ticket successfully.  If you are in California, for more information, we recommend Fight Your Ticket and Win -California.  If you are not in California, we recommend, Beat Your Ticket.  Both can be obtained from Amazon by clicking on the links below. We have not received anything from the author or publisher for recommending these books. Good luck.

Last updated on February 10, 2016

Tips on How to Fight a Traffic Light Red Arrow Ticket: Cal. Vehicle Code Section 21453 (c)

Sometimes you think you are moving through a traffic light on a yellow arrow, but those flashing lights on the police vehicle behind you indicate that at least one person disagrees. If you are given a ticket for failing to stop at a traffic light red arrow in violation of California Vehicle Code section 21453, subdivision (c), here are a few tips.

Section 21453 has several subsections. But we will only concern ourselves with subdivision (c) here. Subdivision (c) provides, “ (c) A driver facing a steady red arrow signal shall not enter the intersection to make the movement indicated by the arrow and, unless entering the intersection to make a movement permitted by another signal, shall stop at a clearly marked limit line, but if none, before entering the crosswalk on the near side of the intersection, or if none, then before entering the intersection, and shall remain stopped until an indication permitting movement is shown.

Thus, the elements of a violation of Vehicle Code section 21453, subdivision (c), appear to be as follows:
 (1) A driver;
 (2) facing a circular red signal arrow;
 (3) shall not enter the intersection;
 (4) shall stop at the limit line;
 (5) shall remain stopped until an indication for movement is permitted.

 Vehicle Code section 377 defines "limit line" as the point at which traffic is required to stop. A "point" is defined as "a particular or precisely specified position, location, place, or spot." (Webster's New World Dict. (2d college ed. 1976) p. 1100, col. 2.)  Thus, in People v. Binkowski (2007) 157 Cal.App.4th Supp. 1, the Appellate Department of the San Bernardino County Court interpreted the phrase "at" the line to mean when a vehicle’s front bumper reaches that line. (Id. at p. 6.)

 If you can convince a traffic court judge that any of the elements of the red arrow statute have not been established by the evidence presented by the officer or in response to your written declaration if you are fighting the ticket by declaration, you can win your traffic ticket case.

Additionally, if the officer does not appear in court or does not respond to your written declaration submitted on time to the traffic court, you can win your case.

Also, sometimes you can convince the traffic court judge to reduce a fine, so usually it does not hurt to try to fight your case yourself or to hire a traffic ticket attorney to fight the case for you.

Vehicle Code section 21452, subdivision (a) provides, “A driver facing a steady circular yellow or yellow arrow signal is, by that signal, warned that the related green movement is ending or that a red indication will be shown immediately thereafter.” Thus, if you entered the intersection on a yellow arrow, this does not violate Section 21453, subdivision (c).

If the ticket is for a red light camera ticket generated by photograph, special evidentiary rules apply. For these types of tickets an experienced traffic ticket attorney may be helpful. For example, in People v. Khaled (2010) 186 Cal.App.4th Supp. 1, an automated red light enforcement case, the prosecution sought to establish the defendant‘s violation of Vehicle Code 21453, subdivision (a), with a police officer‘s declaration presented to support the introduction of photographs (with added date, time and other information) purportedly showing Khaled driving through an intersection against a red light. The documentation included the signature of an employee of Reflex Traffic Systems. Khaled objected, stating that the evidence was inadmissible hearsay and violated his confrontation rights. The Khaled court found the police officer did not qualify as the appropriate witness and did not have the necessary knowledge of underlying workings, maintenance, or record keeping of Redflex Traffic System. Thus, the foundation for submission of evidence was not properly established and the case was reversed.

Also, if another person was driving your vehicle, you may receive the ticket and be able to appear in court and show the judge that the person pictured in the photograph is not you.

Sometimes a traffic officer writes down the wrong traffic section on your ticket. For example, if the traffic signal did not have a red arrow, and some do not, and the officer ticketed you for that section, you can argue that you did not violate the traffic statute as charged. You could take pictures or a video of the traffic signal to show it does not have a red arrow.

Penalties and Cost for violating Vehicle Code section 21453, subdivision (c). 

A violation of Vehicle Code section 21453 is an infraction, and only a fine can be imposed, not jail time. But the DMV can add a point to your driving record if you do not qualify for traffic school, which means that your car insurance rates could go up. Generally, you qualify for traffic school if you have not attended traffic school within the last 18 months. Thus, sometimes it might be helpful to put over the ticket for a short time to qualify for traffic school.

Usually, the court will let you know the amount of fine that needs to be paid if you choose to pay the fine. The base fine for a violation of Vehicle Code Section 21453, subdivision (c), is $100.00 in 2016. But penalty assessments are added to the base fine, which makes the fine about $490.00 but it might be more or less depending on the county.

As stated above, you can challenge this ticket by appearing in court or by written declaration.
 copyright © 2016 Christine Esser

The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney-client relationship is only established when a written retainer has been signed. Disclosure: If you click on the Amazon link, you will be directed to the Amazon website. We recommend the books listed below for additional helpful information on how to fight a traffic ticket.  Fight Your Ticket and Win is for California tickets.  Beat your ticket is for tickets in other states.  Good luck. Thank you.

Tips on How to Fight a Traffic Ticket - Speeding -Cal. Vehicle Code § 22349 (a)

It is a beautiful day and you are cruising down the highway enjoying life until your ride is interrupted by flashing blue lights.  An officer tells you that you were caught speeding.  What should you do now?   Here are some tips if you get a ticket for speeding in violation of Vehicle Code section 22349, subdivision (a).

Vehicle Code section 22349, subdivision (a) states, “Except as provided in Section 22356, no person may drive a vehicle upon a highway at a speed greater than 65 miles per hour.”

In People v. Singh (2001) 92 Cal. App. 4th Supp. 15, the Appellate Division of San Joaquin County rejected appellant’s argument that he should not be found in violation of this statute because he had established that the section of freeway he had been traveling was a speed trap.  Thus, arguing that you were caught in a speed trap is not likely to work in your case.

If you decide to fight the ticket and the officer does not appear for your court appearance, your  case will likely be dismissed.  Also, if you challenge the ticket by written declaration, as stamped on the back of your ticket, the ticket will likely be dismissed if the officer does not submit his or her declaration to the court on time.

But if you fight the ticket by going to court and the officer appears in court, you will need to be able to challenge the officer’s calculation of your speed, convince the court that the officer ticketed the wrong driver, or find some other defect in your ticket to convince the court that your ticket should be dismissed.

Challenging the officer’s calculation of your speed can be complicated, so we recommend that you get Fight Your Ticket - California to learn about the methods used to challenge the officer’s calculation of your speed. Also, Beat Your Ticket is good if you are in another state. Also, you can hire an experienced traffic ticket attorney to help you fight this type of ticket.  Make certain you ask the attorney about his or her knowledge of how to challenge an officer’s calculation of speed by pacing and by radar.

 Here, are some more basic tips.  If the officer relied on “pacing,” which means that  the officer was following your car and using his or her speedometer to calculate your speed, you can cross-examine the officer about how long the officer was following your vehicle.  If you know the officer was only following your vehicle for a short distance, and the officer admits to this, you can try to convince the traffic court judge that the officer’s speed was faster than your speed because the officer had to be to driving faster to catch up to your vehicle; thus, the speed the officer calculated was likely higher than the speed you were traveling and your ticket should be dismissed.

If the ticket is from an aircraft patrol vehicle, both the aircraft patrol officer and the patrol officer  that gave you the ticket needs to be in court to testify about how your speed was calculated if the officer did not independently pace your car and calculate your speed. The aircraft patrol officer may not be able to remember your particular vehicle.  You can ask the court to order the traffic officer who issued your ticket to stand outside the courtroom while you question the aircraft operator about the details of your stop, such as the color of your vehicle, the license plate, the make/model of the vehicle, etc.  It is possible that that the aircraft operator may not remember these details and you could establish that there is insufficient evidence to convict you of speeding.

You can also challenge a radar reading but that is a more complicated endeavor.  We recommend that you read about how to do this in Fight your Ticket or Beat Your Ticket  listed below.

 Vehicle Code 22349 (a) fine cost 

The penalty for this violation often depends on how much over the speed limit the citation claims you were speeding.  The base fine for this violation is $35 if the citation claims you were traveling 1-25 miles per hour over 65.  But the base fine increases to $70 if the citation claims you were traveling 26 or more miles per hour over the 65 mile per hour speed limit.  But that is the base fine and in California, penalty assessments are added to ticket infractions.

Penalty assessments vary depending on how fast you are claimed to have been going and which county you are in.   If you were going 1-15 miles over the speed limit, the fine with penalty assessments will be about  $238, sometimes more, sometimes less, depending on the county, in 2016. If the citation claims you were traveling 16-25 miles over 65, the fine with penalty assessments will be about $367.  If the citation claims you were traveling 26 miles or more over 65 mph,, the fine with penalty assessments will be about $490.

Good luck.  I hope this information helps you to make an informed decision

copyright © 2016 Christine Esser

The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney- client relationship is only established when a written retainer has been signed.

Disclosure; If you click on the Amazon link below, you will be directed to the Amazon website.  This short blog post may not contain all the information you would want to be able to fight a traffic ticket successfully.  If you are in California, for more information, we recommend Fight Your Ticket and Win -California.  If you are not in California, we recommend, Beat Your Ticket.  Both can be obtained from Amazon by clicking on the links below. Good luck.

Last updated on Novembrer 3,  2016