Many of us have talked on our cell phone while driving even though we know it is a violation of the Vehicle Code. Vehicle Code section 23123 pertains to driving while using a cell phone without the use of a hands free device. Many of us have made or taken that occasional call while driving. Recently, I accepted such a call and quickly pulled over to the side of the road. As I spoke on the phone with my car idling I wondered if my actions constituted using a cell phone while “driving.” A recent case doesn’t answer that specific question; however, it does analyze similar issues.
The People v. Carl Nelson, 2011 DJDAR 16531, arose out of an appeal of a traffic court judgment where Carl Nelson was found guilty of violating Vehicle Code section 23123 for using his cell phone while driving in Richmond, California. A police officer testified that he pulled up on his motorcycle directly next to Mr. Nelson’s driver’s side door while Mr. Nelson was in the driver’s seat stopped at a red light. Mr. Nelson was in the process of dialing the phone. Mr. Nelson then placed it to his ear. At that moment, Mr. Nelson noticed the police officer. Mr. Nelson then put down the phone. Once the traffic light turned green, Mr. Nelson drove his vehicle through the intersection. The police officer stopped Mr. Nelson and cited him for driving while using a cell phone.
Mr. Nelson contested his citation, leading to a trial before the Contra Costa County Superior Court traffic commissioner. Mr. Nelson argued that he was not “driving” when he was using his cell phone, but rather, was stopped at the red light. The commissioner upheld the conviction. The appellate division of the superior court affirmed his conviction and granted Mr. Nelson’s request to transfer the case to the First Appellate District of the California Court of Appeal to determine whether the term “driving” as used in section 23123 requires “volitional movement.”
Mr. Nelson hoped the court would rely on a drunk driving case (Mercer v. Dept. of Motor Vehicles (1991) 53 Cal.3d 753), which held driving under the influence requires “volitional movement.” In that case, the court ruled a person found asleep in a parked vehicle with its engine running was not driving because there was no volitional movement.
Unfortunately for Mr. Nelson, the court refused to apply the definition of driving adopted by the Mercer Court. Instead, the court held that the Legislature intended section 23123 to apply to persons driving on public roadways who, like Mr. Nelson, may pause momentarily while doing so in order to comply with the rules of the road.
Regrettably, the court did not address whether my actions of pulling off the road to talk on the phone with my car idling would constitute a violation of Section 23123. Just to be safe, next time I’ll turn my engine off or better yet, perhaps with the holidays approaching I’ll receive the hand held device on my wish list!
In case you were wondering, a violation of Vehicle Code section 23123 is an infraction punishable by a base fine of $20 for the first offense and $50 for each subsequent offense.