How can I beat my cell phone ticket?
It’s pretty easy:
- Wait a bit for me to get your registration and review your cell phone ticket details
- I will email you some example declarations that most closely resemble the circumstances of your traffic stop. You can edit the examples to put in your particular details, like your name, the street where it happened, the time and date, etc.
- Print it, sign it, send it.
That’s it. Pat yourself on the back for standing up for yourself. All that’s left is to cross your fingers. You’ll receive notice from the court of the verdict. If you did everything right, your chances of beating your cell phone ticket are somewhere between 80% and 90%. Those are good odds.
I taught traffic school for ten years before starting the Ticket Assassin in 1998. Since then, over a million people have accessed the Ticket Assassin Shareware to fight their traffic tickets. I've been fighting cell phone tickets since the "hands free" law was passed in 2006. My members have been enormously successful. More than a few have been back half a dozen times to fight other bogus tickets.
There are many strategies you can use to beat a cell phone ticket in a trial by written declaration.
Can I touch my cell phone while I am driving?
Can I use the map on my cell phone while I am driving?
It is not illegal to dial or otherwise simply touch a wireless device while driving. CVC 23123 has no such restriction on dialing phones, regardless of the current, popular interpretation of the phrase "hands free."
California Vehicle Code 23123 was written in 2006. “Hands-Free-Mode,” in 2006, meant either wearing the cellphone earpiece while talking OR using the cellphone in speaker mode. It was interpreted at the time as making it illegal to hold the phone up to your ear and talk into it, but it remained perfectly legal to touch the phone in order to dial the phone.
Since 2006, some phones have evolved a hands-free mode that enabled hands-free dialing. However, this was NOT part of the law in 2006 and it is not part of the law now. Hands-free dialing simply did not exist in 2006 (not for the vast majority of cell phone users, anyway). It was perfectly legal to touch your phone for the purposes of dialing after the law was passed in 2006, and it remains so now, regardless of today’s popular definition of the phrase “hands-free.” The law has not changed, only some police officer's interpretation of what "hands-free" means.
Not being able to touch your device is simply not part of CVC 23123. It does not say anywhere in CVC 23123 that you are not allowed to touch your wireless device. CVC 23123 says: “(a) 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.” Please note that it specifically references hands free listening and talking, not dialing or looking at the map or otherwise touching the phone. Please note that nowhere in the code does it say it is illegal to touch your device.
23123.5 was added to the California Vehicle Code in 2009. It prohibits texting (something just about everyone agrees should be illegal). 23123.5(c) says:
(c) For purposes of this section, a person shall not be deemed to be writing, reading, or sending a text–based communication if the person reads, selects, or enters a telephone number or name in an electronic wireless communications device for the purpose of making or receiving a telephone ( )2 call or if a person otherwise activates or deactivates a feature or function on an electronic wireless communications device.
If there is any doubt, whatsoever, that the vehicle code does not ban touching your phone, 23123.5(c) clearly removes that doubt. 23123.5(c) states, unequivocally, that it is perfectly legal to activate or deactivate a feature or function on a device with your hands.
A trial by written declaration should easily dispatch this ticket and save you the trouble of a court appearance. Make sure you request a trial de novo, should you lose your trial by written declaration. You might also want to include a filled-out TR-220 form to include with your declaration, just to show you mean business.
Question Part One: why did the Appellate Court in Fresno, CA rule against the guy using his Phone's GPS if the original written law allows it?
Answer: Bad decisions get handed down every day. And this is Fresno. What do you expect?
Question Part two: As it currently stands, what implications does that ruling now cover? They are speculating that it may now be illegal to use the GPS, the I-Pod, the camera or the audio recorder within the I-phone while driving. They are also saying it may even extend to Garmin GPS's and Apple I-Pod's.
Answer: For several years, some cops have been interpreting CVC 23123 as not being able to touch your device at all; others interpret CVC 23123 as not being able to hold your device in your hand; others interpret CVC 23123 as not being able to hold the phone up to your ear. It depends on the cop.
There also seems to be no agreement on this particular issue among the judges, commissioners and referees who adjudicate traffic cases. If you are writing a declaration or headed to court, you should be familiar with CVC 23123 AND CVC 23123.5.
CVC 23123 makes absolutely no mention of GPS devices. However, that does not stop cops from writing tickets for people holding these devices in their hands. These tickets are written by the dozens, every day, in California. People using the GPS map on their iPhone get ticketed by the hundreds, every day, in California, despite the fact that they were not using their phone. And, that opens up an interesting, almost existential argument: when is a phone not a phone? One could argue that a wireless device, these days, is not a phone unless it is being used as a phone. When it is being used as a GPS device, then it is a GPS device. And, as the existential argument goes, when it is being used as a paperweight, it's a paperweight :-).
CVC 23123 uses the phrases "wireless telephone," "telephone," "listening and talking." The letter and spirit of the law is CLEARLY intended to focus on the distracting effects of talking on a phone while driving, Podunk court decisions notwithstanding.
If you get a cell phone ticket, you don't have to overturn state law, you just have to convince YOUR judge that you were not violating CVC 23123. People have been successful fighting CVC 23123 tickets by using the CVC 23123.5 argument I mentioned earlier.
Question: Do you think it's true that if you asked 100 cops numerous detailed questions about what is legal and illegal with cell phones while driving, you'd get 100 different responses?
Answer: I'll bet you won't, actually. Many, if not most, cops have a passing familiarity with the vehicle code they enforce and could probably parrot it back to you quite accurately. Interpretation of the vehicle code is another story altogether.
In my experience, California cops tend to interpret our vehicle code in whatever way they find most convenient during a traffic stop. The labyrinthine nature of the vehicle code grants them this freedom. However, this freedom is not absolute.