Monday, September 30, 2019

Preparing your case to fight your traffic ticket, part 5

Finally, you can use the "all-knowing google" to see if there's anything else out there that might help you.  I googled “California case cellphone use driving” and various combinations and permutations.  I discovered the case People v Spriggs.

In that case, Mr. Spriggs pulled out his cell phone to find an alternate route around a traffic jam.  He was NOT talking, he was NOT texting.  He was looking at a map.

He was charged with violating Vehicle Code section 23123, same as I was.

Here's the court's summary of its decision:

Spriggs contends he did not violate the statute because he was not talking on the telephone. We agree. Based on the statute's language, its legislative history, and subsequent legislative enactments, we conclude that the statute means what it says — it prohibits a driver only from holding a wireless telephone while conversing on it. Consequently, we reverse his conviction.

The court engaged in a very long discussion of the history behind the law, and focused on what it thought was the intent of the legislature when it drafted the law.

The statute specifically states the telephone must be used in a manner that allows for "hands-free listening and talking." It does not state that it must be used in a manner that allows for hands-free looking, hands-free operation or hands-free use, or for anything other than listening and talking. Had the Legislature intended to prohibit drivers from holding the telephone and using it for all purposes, it would not have limited the telephone's required design and configuration to "hands-free listening and talking," but would have used broader language, such as "hands-free operation" or "hands-free use."

Therefore, since I was not listening or talking, I wasn't guilty of violating this statute!

Same caveat as last week:

Caveat – I'm discussing the law as it existed (1) at the time I received my ticket, or (2) at the time I wrote this blog post.  The law frequently changes.  The Vehicle Code section might be different now.  A new case might have been decided with the opposite result and which overruled the case I discuss here.  Always look at the law and the cases which are in effect on the date YOU received YOUR traffic ticket.

Next week we'll look at collecting your evidence for trial.

Monday, September 23, 2019

Preparing your case to fight your traffic ticket, part 4



What's the definition of the word DRIVE?

California Vehicle Code section 305 states – A “driver” is a person who drives or is in actual physical control of a vehicle.

A driver is a person who drives.  Wow that's helpful.  Not.

And, even while the car was stopped at a red light, I was in actual physical control of the vehicle.  This doesn't look good for me so far.

I then found a jury instruction that is relevant to the word “drive”.

This instruction includes statutes and cases, what we lawyers call authority.  Yay!  One is the Vehicle Code section above.  The other is a case.  Mercer v DMV (1991).  I googled it.  Now admittedly I'm an attorney and know how to read cases, pull out the relevant information, and argue it.  Even if you're not an attorney, bring a copy of the case with you to your trial.  Yellow-highlight the parts that you think are important and are in your favor.  It can't hurt, right?


This case is from the California Supreme Court, not a lower Court of Appeal, so it's the final word in California on whatever it decided.

“We now turn to the essential question posed in this case, namely, whether an officer may make a 'lawful arrest' for 'drunk driving' in violation of section 23152(a), if the arrestee's vehicle is lawfully parked and the officer has not observed the vehicle move.”

I wasn't arrested for drunk driving.  Was I “parked”?

California Vehicle Code section 463 - “Park  or parking” shall mean the standing of a vehicle, whether occupied or not, otherwise than temporarily for the purpose of and while actually engaged in loading or unloading merchandise or passengers.

I was stopped at a red light.  Therefore, my vehicle was standing.  It was occupied.  It was “otherwise than temporarily for …”  Therefore, I could also argue I was “parked”.  Let's read more of the case to see if  “driving” also includes “parked”.

“Any doubt about our understanding of the word 'drive' is dispelled by decades of case law holding that the word 'drive,' when used in a drunk driving statute, requires evidence of a defendant's volitional movement of a vehicle.”

Okay this case is limiting its definition to “when used in a drunk driving statute” but I can still try to argue that it applies to me too.

The court analyzes the laws of 43 states, then states:

“But as we noted above..., the presence of the disjunctive 'or' in the quoted definition discloses legislative intent that a distinction be drawn between the verb 'drive' and the concept of 'actual physical control,' and thus it is improper to conclude, as did the Colorado and New Mexico courts, that the two terms are synonymous.”

Yes, every single word in every statute is important!

“Based on (i) the 'plain meaning' of the statutory term 'drive,' (ii) the use of that and related terms by our Legislature in related statutes, and (iii) the interpretation of the word 'drive' and related terms in numerous decisions by our sister states, we conclude section 23152 requires proof of volitional movement of a vehicle.”

Yes!  The car must be moving to satisfy the definition of “drive”.  I was NOT moving.  I was stopped at a red light.  Yay me!

Caveat – I'm discussing the law as it existed (1) at the time I received my ticket, or (2) at the time I wrote this blog post.  The law frequently changes.  The Vehicle Code section might be different now.  A new case might have been decided with the opposite result and which overruled the case I discuss here.  Always look at the law and the cases which are in effect on the date YOU received YOUR traffic ticket.

PS – if you found this statutory analysis interesting or fun or exciting, (1) come back next week because we'll be looking at another case, and (2) consider going to law school =)







Monday, September 16, 2019

Preparing your case to fight your traffic ticket, part 3

Next, break down the statute into ALL of its component parts.

California Vehicle Code section 23123:

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.

No, this is not what I was driving at the time
A person – yep, I'm a person

shall not – be sure the law says “shall” rather than “may”, otherwise you can argue that it's optional


drive – I was stopped at a red light at the time, so the definition of “drive” is very important.  I can argue that I wasn't actually driving, but unless I have a statute or case to back me up, I may not win.  More about this next week.


a motor vehicle – if I was on a bicycle or other non-motorized vehicle, I would not be guilty

while using – I was texting my son.  I could look up the definition of “using”, but I decided this was too much of a stretch.


a wireless telephone – it was my cell phone, which is wireless


unless – ah!  Here's another exception.


that telephone is specifically designed and configured – the phone must be both designed and configured for the next option


to allow hands-free listening and talking – it's  designed for hands-free listening and talking by using the speaker option and also by connecting with a bluetooth or similar device.  It wasn't configured at the time for bluetooth use, but it was configured at the time to use the speaker option.  So this would work.


and is used in that manner – at the time, I was not using it for listening or talking, nor was I using it on the speaker or bluetooth options


while driving – another requirement for driving, see next week

So, analyzing the law, this exception doesn't appear to apply, altho the emphasis on speaking and listening was interesting.  Further research taught me that texting is 23123.5, not 23123, so I definitely could argue that I wasn't guilty of violating the law that was cited on my ticket.  I was not speaking or listening on my phone.  So long as I do NOT admit to being guilty of another violation, the judge would have to find me NOT guilty.

Next week, we'll look at the definition of “drive”.


Monday, September 9, 2019

Preparing your case to fight your traffic ticket, part 2

Here's a great page that explains the steps to prepare your case.

First, read the actual statute/law that was written on your ticket.  In California, texting while driving is a violation of Vehicle Code section 23123.5.  However, I was cited for violation of Vehicle Code section 23123.  I looked up that code and found this:

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. 

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.
 

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.
 

This section does not apply to a person driving a schoolbus or transit vehicle that is subject to Section 23125.
 

This section does not apply to a person while driving a motor vehicle on private property.
 


First, check to see if what you did qualifies as an exception, which are identified in bold italics above.

1. Emergency purposes – including [but not limited to] an emergency call to law enforcement, health care provider, fire department, other emergency services or entity.
2. Emergency services professional while operating an emergency vehicle, on duty.
3. Driving a schoolbus or transit vehicle
4. Driving on private property


Numbers 2, 3, and 4 obviously did not apply.


Number 1, however, was a possibility.  I could argue that texting my son the day before he reported for Navy boot camp was an emergency.  He was my oldest child and moving out to join the military and my BABY was leaving me and I wouldn't be able to talk or text or email or have pretty much ANY contact with him for THREE WHOLE MONTHS.  All of which was true at that time.  Plus, the contents of the text was related to his leaving the next day.

It was a long shot, but it sure sounded like an emergency to me.

Next is very important.  Sure my testimony would be valid, but what other evidence could I use to support this argument?

1. The text message itself.  I printed a paper copy to bring to court.  Do NOT just plan to show your phone to the judge.  You'll need to have your actual phone in court, because it's the original evidence, but also bring a paper copy.  It's awkward to hand your phone to the bailiff for the judge to look at, then have it returned to you so you can find the next piece of evidence and hand it back to the bailiff, etc.  Easier to hand up the paper copy and let the judge know you have the phone with you in case the judge wants to look at it too.
2. My son's orders.  I made a copy of my son's paperwork showing he was scheduled to report to boot camp the day after I received the citation.
3. Photo of me and my son.  Not really relevant but couldn't hurt, right?  I had a great one on my phone, which I printed so I had a paper copy in court along with the original photo on my phone.


If nothing else, maybe the judge would have mercy on me and reduce my fine =)

Next week, we'll look at the main part of the code section itself.

Monday, September 2, 2019

Have a happy Labor Day!

Today is Labor Day here in the US.  As you read this, I'm driving home from a camping trip with my family.
We stay in cabins like this
Have a great Labor Day!  We'll continue with preparing for a traffic trial next week.