What Does “Using” A Cell Phone While Driving Mean? Examining CVC 23123 and CVC 23123.5

What Does “Using” A Cell Phone While Driving Mean? Examining CVC 23123 and CVC 23123.5

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Technology grows at an exponential pace. The phone you’re using to view this article is probably more advanced than the computers California legislators were using to draft statutes regulating cell phone use on the road. When your elected representatives first passed SB 1613 and SB 28, mobile communications devices were still in its pre-Darwinian stages of evolution into the smart phone of today.[1]  The iPhone didn’t even hit the market until after this legislation was introduced. These acts which have been codified as California Vehicle Code section 23123 (using a cell phone) and California Vehicle Code Section 23123.5 (sending/receiving text) were meant to “[establish] statewide safety guidelines for use of wireless telephones while operating a motor vehicle.” [2] However, one thing legislators left unclear is the definition of “while using.” [3]

Every day, people are cited with these violations. Many people claim they weren’t talking or texting but instead they were utilizing their phones’ GPS features for directions or a music player to entertain the ride. Yet, police officers have a strict no-hands policy. If they see you holding your phone, they will pull you over. However, just because your hands were on your phone doesn’t necessarily mean you were breaking the law.  CVC 23123.5(c) says it’s not a violation of that code if you were using your phone to enter someone’s number for the purpose of receiving or making a call. [4] Furthermore, the actual legislation of SB 1613 strongly suggests any references to “using” a phone allude to calling and listening only.[5] Legislators specifically adding CVC 23123.5 to include texting also suggests CVC 23123 was not meant to be a catch-all provision for people on their phones.[6]  Even the information page from the Foster City Police Department website says it’s not illegal to use your phone as a GPS tool while driving.

Keep in mind, an argument can still be made that legislators’ main goal was public safety. Hence, legislators including texting can also be seen as an intention that they meant to include other capabilities of a phone.  Nonetheless, until the law expressly defines “using” a cell phone, what constitutes illegal activity regarding cell phone usage on the road remains uncertain.

If you’re seeking legal advice, feel free to contact me here at the Law Offices of Mark A. Gallagher: (800) 797-8406 or email me: hans.socaldefense@gmail.com

[1] SB 1613 known as the California Wireless Telephone Safety Act was introduced and passed in 2006. SB 28 was introduced in 2006 and passed in 2008.

[2] See SB 1613 Section 2 (e).

[3] California Vehicle Code Section 23123(a) states, “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.”

[4] California Vehicle Section 23123.5 (c) states, “(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.”

[5] SB 1613 Section 2 (b): “On a daily basis, California drivers make thousands of wireless telephone emergency 911 calls.” ; Section 1613 Section 2 (c): The availability of wireless telephones in motor vehicles allows motorists to report accidents, fires…”

[6] California Vehicle Code Section 23123 and California Vehicle Code Section 23123.5 have the same base fines for first time and repeat offenders. $20 for first offense and $50 for each subsequent offense.


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