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”.

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