California law prohibits anyone driving on public roadways from using a wireless telephone unless the phone is configured for hands-free listening and talking, and is used in that manner while driving. Carl Nelson is one person who would not willingly accept the ticket he received for using his phone while stopped at a stop-light. And, Mr. Nelson was unfortunate to have a police-officer on a motorcycle stopped next to him. (It is interesting to note however that he may not have been as confident in his position when he was ticketed, as he seemed in court thereafter: When the officer stopped next to him, he immediately removed the flip-type cell-phone from his ear and closed it.)
Mr. Nelson challenged the citation in traffic court, where he testified he was “checking his email and pushing some buttons on his phone” but only while stopped, waiting for a green light. He lost. He then appealed to the Superior Court, and lost. Finally, he appealed his citation to the California Court of Appeal, where he argued that he was not “driving,” and therefore the law did not apply to him.
If you love texting while driving, don’t get your hopes up. Even though it took the California Court of Appeals 24 pages to explain its ruling, it was clear: when one is stopped at a stop light, he or she is still “driving.” The ticket was confirmed, and a perceived loophole closed by a thorough Court of Appeal.
One of the three justices wrote a concurring opinion, and while he applauded the majority’s “scholarly analysis of legislative history,” he did not think it was necessary or warranted and in less than one page concluded “…all of us are expected to stop for red lights, stop signs, crossing trains, and funeral processions. In short, all drivers may, and sometimes must, stop. But they do so while ‘driving.’ Just like defendant.” Here is the decision.
Don’t text and play with your smart phone while “driving.” (Unless, of course, the exception applies.)
Stephen C. Gerrish, Litigation Group
