Tuesday, January 25, 2011

Texting while driving & cell phone violation enforcement can "get out of hand" by overzealous CHP & DUI cops in California - fight these tickets!

CHP's gestapo-like hands free cell phone crackdown and multiple San Diego County DUI - related cop agencies run rampant vis a vis the "Hands Free is Ticket Free" campaign.

Cops zeroed in on drivers Jan. 18 - Jan. 20. 593 citations were issued for those who violated the law. 36 people were cited for TWD texting while driving, a violation of California Vehicle Code Section 23123.5.

California Vehicle Code - Section 23123.5:

(a)A person shall not drive a motor vehicle while using an electronic wireless communications device to write, send, or read a text-based communication.
(b)As used in this section "write, send, or read a text-based communication" means using an electronic wireless communications device to manually communicate with any person using a text-based communication, including, but not limited to, communications referred to as a text message, instant message, or electronic mail.
(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 call.
(d)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.
(e)This section does not apply to an emergency services professional using an electronic wireless communications device while operating an authorized emergency vehicle, as defined in Section 165, in the course and scope of his or her duties.


California Vehicle Code section 23123:

(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.
(b)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.
(c)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.
(d)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.
(e)This section does not apply to a person when using a digital two-way radio that utilizes a wireless telephone that operates by depressing a push-to-talk feature and does not require immediate proximity to the ear of the user, and the person is driving one of the following vehicles:
(1)(A)A motor truck, as defined in Section 410, or a truck tractor, as defined in Section 655, that requires either a commercial class A or class B driver's license to operate.
(B)The exemption under subparagraph (A) does not apply to a person driving a pickup truck, as defined in Section 471.
(2)An implement of husbandry that is listed or described in Chapter 1 (commencing with Section 36000) of Division 16.
(3)A farm vehicle that is exempt from registration and displays an identification plate as specified in Section 5014 and is listed in Section 36101.
(4)A commercial vehicle, as defined in Section 260, that is registered to a farmer and driven by the farmer or an employee of the farmer, and is used in conducting commercial agricultural operations, including, but not limited to, transporting agricultural products, farm machinery, or farm supplies to, or from, a farm.
(5)A tow truck, as defined in Section 615.
(f)This section does not apply to a person driving a schoolbus or transit vehicle that is subject to Section 23125.
(g)This section does not apply to a person while driving a motor vehicle on private property.


A valid loophole, California law does not prohibit drivers from dialing their phones, but dui lawyers advise against it as the cops are looking for any phone contact to pull someone over. Sometimes they pull people over for putting a burrito to their mouth.

An officer’s subjective conclusion the “texting wile driving” law has been violated also does not support a detention if he/she is wrong. Police error about the requirements for traffic detentions, good faith or not, do not support the stop and ensuing warrantless evidence collections. People v. White (2003) 107 Cal.App.4th 639, 644; People v. Hernandez (2003) 110 Cal.App.4th Supp. 1, 5; People v. Butler (1988) 202 Cal.App.3d 602, 607; United States v. Mariscal (9th Cir. 2002) 285 F.3d 1127, 1130 [“If an officer simply does not know the law, and makes a stop based upon objective facts that cannot constitute a violation, his suspicions cannot be reasonable. The chimera created by his imaginings cannot be used against the driver.”]

A suspicion based on such a mistaken view of the
law cannot be the reasonable suspicion required for
the Fourth Amendment, because "the legal justification
[for a traffic stop] must be objectively grounded."
In other words, if an officer makes a traffic stop
based on a mistake of law, the stop violates the
Fourth Amendment.
United States v. Twilley (9th Cir. 2000) 222 F.3d 1092, 1096

See also United States v. King, 244 F.3d 736, 741-42 (9th Cir. 2001) (a mistaken
belief that a driver's conduct violated the law could not support a reasonable suspicion that a crime had been committed, even if the officer otherwise behaved reasonably).


During CHP's first overzealous cell phone crackdown in November, more than 1,100 drivers were ticketed for talking or texting during a 2-day period.

The latest numbers showed more drivers seem to be getting the message, but officers also said fewer agencies were involved in this operation, attorneys are told.

Fines vary by county, but court costs and other fees reach $150.