Cell Phone Tickets
- More Advice about Traffic Tickets
Parent Q&A
Archived Q&A and Reviews
Please help..how to Fight a Cell phone Ticket?
July 2013
I recently got pulled over for an alleged cell phone violation to the tune of $170 for my very FIRST violation. I am looking for advice on how to fight it through trial by declaration. I think it's important to state that I agree with that this law is helpful, but don't think that my circumstances violated said law. I had just dropped my son off at a friends house. He is very allergic to bees and had been stung several times this summer with bad symptoms. I noticed I had a missed call from his friend and called right away. I dialed when I was stopped at a stop light, put my phone on speaker and never held it up to my face at all. I never actually touched the phone while driving The call went to vmail and was less than 10 seconds long which I proved to him upon him asking. When I was pulled over the officer asked my story and to see my call log. Despite my story checking out he still gave me a ticket. He was extra aggressive, and seemed to have had his mind made up no matter what the situation was. It was a Lafayette motorcycle cop, pulling me over in Moraga. I was NEVER in Lafayette or anywhere close to it. I'm wondering if this would be one of my defenses or if this is allowed because Moraga is a town? Any advice is appreciated. Not only can our family truly not afford this, but it really hurts because I feel targeted and that I didnt violate any laws. I plan on fighting this trail by declaration as I cant afford a sitter for my 3 small children. Thanks! lily
I know this might sound harsh, but my suggestion would be to pay the ticket and pull over (stopping at a red light does not qualify) the next time you need to make a phone call. x
Studies are showing that it's the divided attention, not the use of your hands, that makes cell phone and driving a dangerous combination. People talking ''hands free'' have nearly the same elevated rates of accidents as people using their hand to hold the phone. So ''I never touched the phone while driving'' is not especially relevant to safety, and in any case, when did being in the road at an intersection with the engine running cease to be driving just because you were at a stop sign? Is an unlicensed, underage, or drunk driver off the hook just because they happened to be spotted by the cop while the car was stopped briefly at an intersection? No! That's still driving.
OK, so please just accept the penalty for doing something illegal and dangerous. That's the kind of responsibility we want to model for our kids, right? Pull over and turn off the engine, then use your cell phone
You're wasting your time trying to get out of a moving violation ticket in the Bay Area. Keep in mind that tickets are one of the major sources of revenue for this area, where most cities are broke. I was pulled over the day after I moved here from Texas, with a TX license plate and a TX driver's license, like you I was very briefly holding my phone and had an emergency. No chance to get out of the ticket. Good news is, a cell phone violation does not go on your driving record. Pay your $170 and move on in your life. using an earpiece now
You broke the law. Pay the fine and be thankful our police are actually enforcing this law. anon
I have no idea whether Lafayette police can write tickets in Moraga (my guess is that they can) and the moderators will not allow legal advice, but I can state as a fact that the California Court of Appeal has ruled that use of a hand-held telephone while stopped at a red light is a violation of Vehicle Code section 23123 so the fact that you were not moving when you dialed does not matter. See People v. Nelson (Nov. 14, 2011) volume 200 Official California Appellate Reports page 1083. Next time, pull over to the curb and stop. And, turn off your engine for good measure.
This is not complete advice but I just wanted to warn you about one thing. This happened to me once when a policeman said I did not stop at a stop sign and I actually had. The driver in front of me stopped out in front of the stop sign and rolled and stopped again way out in the intersection and I had stopped at the sign during his first stop. I felt this affected the perception of the policeman somehow. I earnestly explained all this to him just the way you did.
When I finally went to court months later, the judge heard the cop first and he essentially used my exact words and argument against me as though these were facts he thought of, a process he saw when he really hadn't, then twisted the details to support his argument. Do you get what I'm saying? There is no way he remembered the conversation so I think they take notes. Anyway, when I repeated what he had said and then said, but I did stop, I even sounded stupid, foolish and lying to my own ears and the judge didn't believe me!
This was Richmond and they were terrible and robotic, overstaffing and hovering around the school during drop off and pick up times. People are pretty responsible when they have young kids and none of the many many tickets all of us parents got were serious at all, and many others were reportedly unfair too or not true. They must have thought parents were a good source of city funds.
Moral: I will never tell a police anything at the scene except ''I didn't do that'' (if I didn't). Be prepared for this tactic in court and present whatever evidence you have. - my 2 cents
Sad to say I know exactly the cop of which you write as he gave me a ticket for the exact same offense. The road I am presuming you were on is one of Lafayette's biggest ticket traps. I see people pulled over EVERY DAY for some violation or another. Very similar situation for me- first offense with cell phone, was using the speaker and my ticket was the same cost. If you research, you'll find the actual violation is very minimal fee but Contra Costa tacks on court costs and other ''processing fees'' that bring this up to $170. It's a money maker for the county. And while I completely support the no text / talking while driving I wish they'd ticket the drivers that are actually offending not the ones it seems they randomly select and assume they are even with explanation.
I did a bit of research about fighting this type of ticket and the time to do it frankly wasn't worth it to me. The most common suggestion was to suggest a change of venue to make it less likely the ticketing officer will appear if the court is too far away, but hey it's Lafayette and I suspect the cops here make or easily find the time.
I know that was the last time I ever used my cell driving without my ear piece. I honestly very rarely talk on the phone in my car as it's too distracting and unless the conversation involves my kids, it can wait. Good luck. Lesson Learned
Why are you trying to fight this ticket ? The Chron recently reported that making a cell phone call while stopped, while the car is in drive and at a traffic light, is illegal and can be ticketed. The cops are sick of people trying to rationalize cell phone usage while driving. Pay up and pull into a parking spot next time. It's Dangerous !
According to the FAQs on the DMV website, your actions as you describe them are within the law. You are allowed to dial. You are allowed to use your phone as a speakerphone. The question is whether you will win your case. You've seen that the police are simply motivated to write tickets and collect revenue, not protect citizens from real crime. The courts take a similar stance. At least there is no traffic point assessed in the cell phone infraction. Lost my case
Lily, You said any insight would be welcome so I hope this post will be. Your cell phone belongs in the back seat or a purse where you can't see it, hear it, or be distracted by it. As pointed out recently by the CHP, your attention while operating a motor vehicle needs to be 100% on operating a motor vehicle. That means when the engine is running, the car is on the roadway, and you are at the controls, you are responsible for the lives in your vehicle and all the people around you. Dialing a cell phone at a red light is not an exception. I will add that I was appalled that you were asked to show your telephone log-huge violation of privacy. I assume it was a request and not an order so you could have declined which likely would have guaranteed a ticket no doubt. You may be able to use that to squeak out of this ticket but in the future please keep your hands on the wheel and eyes on the road even at red lights. The rest of us are counting on you to be paying attention. If you have any doubt ask yourself what would have happened at the DMV the day you took your driving test if you had whipped out a cell phone at a red light and made a call about bee stings. If you had you wouldn't have a license or a ticket. Bee safe. run out of my lane at 70 mph by texter
I'm sorry to tell you this, but if you TOUCHED your cell phone at any time while you are in the car, and the car is not stopped AT THE SIDE OF THE ROAD, then you can be pulled over and you'll get a ticket for $170. I have a friend who got one of these tickets, and I was listening to all the stories and excuses told to a judge while I was waiting in court to protest a ticket. The judge has NO patience for all the various excuses. Your backstory is irrelevant, except that usually there are work options to pay off a fine if you show financial need. The fact that your son had a bee sting is irrelevant. The fact that you dialed the phone while at a stop light shows that you violated the law, pure and simple (and you sure as heck irritated those of us who might have been behind you waiting for you to pay attention to the road). Give up the idea of getting rid of the fine because you can't afford it or don't think you deserved it because you simply needed to phone back for a missed call. If you really can't afford it, be prepared to show financial need and spend some serious time working off the fine.
And you may want to be more serious about not using your cell phone while driving. Not only does it violate the law, but many studies have shown thateven just talking on the phone while driving (even if you did it legally, which would be totally hands off), you're still so distracted that it's practically equivalent to drunk driving.
I hope I am not the only one who urges you to NOT fight this. I don't care what the circumstances. I put my phone away when driving. We have all survived this long and will continue to survive without having to answer the phone with such immediacy. If it was an emergency situation, pull over. Do the right thing and pay. They can put you on a payment plan if it is a hardship. put your phone down
PEOPLE v. NELSON CA #A131301
http://caselaw.findlaw.com/ca-court-of-appeal/1585404.html
''Defendant Carl Nelson appeals from a traffic court judgment of guilt for violating Vehicle Code section 23123,1 which states that persons shall not drive on public roadways using a wireless telephone unless the phone is configured for hands-free listening and talking, and used in that manner while driving. (\xc3\x82\xc2\xa7 23123, subds.(a), (e).) Defendant was observed using his phone in his car as he paused at a red traffic light while driving in Richmond, California. He argues he was not ''driving'' because his car was stopped during his phone use, relying on our Supreme Court's determination in Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753 (Mercer ) ...
'' ... Here, defendant used his wireless telephone with his hands while driving on a public roadway at a time at which he paused momentarily at a red light. This situation is not addressed in Mercer or other relevant case law. We conclude, pursuant to our application of Mercer and black-letter rules of statutory interpretation, including our review of the language and legislative history of section 23123, subdivision (a), and our application of reason, practicality, and common sense to the language at hand (MacIsaac v. Waste Management Collection & Recycling, Inc. (2005) 134 Cal.App.4th 1076, 1084 (MacIsaac )), that the Legislature intended section 23123, subdivision (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. Therefore, we hold that defendant violated section 23123, subdivision (a) and affirm the judgment.''
That appears to be correct:
The total for a first violation will likely exceed $150, and a second or subsequent offense can cost over $250. A violation of the handheld cellphone ban will not count as a point on your driving record. (California uses a "point system" for moving violations.)https://www.nolo.com/legal-encyclopedia/cell-phones-driving-california-law-29709.html
I realize that this may not be the answer you are looking for, but have you considered simply letting your son experience the natural consequences here?
He's over 18. He got a ticket. It seems to me that this could be a valuable learning opportunity for him. At that age I got a couple of tickets and had to pay for them myself with money from a part time job. I went to traffic school twice. It was expensive and boring. I learned to drive more safely. If it were my son, I would just hand him the notice and let him take care of it.
I'm not saying this to be snarky. We all want for our children to become responsible adults. Navigating these systems is part of that.
Thanks to the person who responded with the info. We also confirmed with our insurance agent. To the other person, my son is across the country in college so I needed to mail the item in for him and wanted to be sure he didn't need to do traffic school. So yes, you did sound snarky and didn't answer the question I asked...perhaps if you think your answer might sound snarky re-read the question before posting.