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.

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