In California, various laws ban cellphone (wireless telephone) use while driving. CA Vehicle Code 23123, Public Offenses 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.” This law provides the consequence of a $20 base fine for the first cellphone ticket offense and $50 for subsequent offenses.
These laws do not bar the required use by emergency service personnel or the necessary use by any driver to contact medical, police, fire or other emergency service personnel.
AB 1785, Use of Wireless Electronic Devices approved by the Governor on September 26, 2016, repealed CVC 23123.5 and enacted the new CVC 23123.5, Driving Offenses, effective January 1, 2017. AB 1785 changed the language of the law to state, “…holding and operating a handheld wireless telephone…”which prohibits even picking up the phone to check messages while driving.
The premise of the new law is to preclude driver distractions. No longer can a driver who received a cellphone ticket use the excuse, “I wasn’t using it, I just picked it up to check my messages.” But, the law still allows drivers 18 or over to use mounted devices and system installed devices with hands-free or voice-activated controls that work with a tap or finger swipe.
Any device used to enhance hearing can only be for one ear. The use of an earpiece is legal if it is used in just one ear. The use of headphones with coverings for both ears is illegal, even when not worn to cover both ears, or sitting on top of the driver’s head.
The new law did not change the wording to prohibit the emergency use or the use by emergency services personnel.
As published in the Sacbee in February 2018, a study conducted by the Office of Traffic Safety (OTS), indicates the law seems to have cut in half the use of cellphones while driving during its first year in existence. Public safety officials are saying the old verbiage allowed drivers to check messages, Facebook, or maps as long as they were not texting or talking on their cellphone. Now, you can get a cellphone ticket for just picking up the phone while driving or sitting in traffic.
Drivers Under 18-Years-of-Age
Drivers less than 18-years-old are prohibited from using even a hands-free cellphone or communication device while driving. However, the law does not allow a law enforcement officer (LEO) to stop a driver solely based on their “presumed” age or use of a hands-free device but may ticket an under-aged user stopped for another violation. The law is questionable, in that, how could an LEO determine positively if the under-aged driver is using a system-installed device and not merely singing with the radio?
Drivers under age 18 cannot use any wireless telephone, laptop, pager, or electronic communications device to text or speak when driving, period. Except to call medical, fire, or law enforcement personnel in a bona fide emergency.
The new law prohibiting cellphone use when driving is part of a trend nationwide. Most states now prohibit handheld cellphone use while driving. And, many have placed restrictions on the use of mounted or installed devices by novice drivers because of the distraction it causes. Safety concerns have spurred the new laws. Evidence by public safety officials strongly suggest that drivers are more distracted by cellphone use, which increases accident risks.
Cellphone Ticket Fines and Points
California Cell Phone Ticket Fine
A first offense conviction (paying the fine is a guilty plea, thus a conviction) carries a $20 base fine, and subsequent convictions are $50. However, the actual fine, once state and county assessments, surcharges, and fees are added is closer to $160, and subsequent cellphone ticket convictions are nearly $280 depending on the county in which you were cited for the violation.
The conviction still does not count as a moving violation and therefore does not have a Negligent Operator Treatment System (NOTS) point assessment and will not lead to an increase in your insurance premiums.
Unforeseen Consequences for CDL Holders
Although most traffic ticket lawyers would advise against fighting a cellphone ticket, CDL holders must fight all traffic tickets. The Compliance, Safety, and Accountability (CSA) assesses ten points for the use of a mobile device while driving, and the verbiage in AB 1785 prohibits the use of an “electronic wireless communications device” including a “broadband or (CB) personal communication device.” Many truckers are unhappy with this language in the law because they have been using CB radios safely for decades.
Therefore, if a CDL holder pays the fine for a cellphone ticket, even though it may have been for using a CB radio, they face CSA points. According to thebalance.com, they will get assessed ten CSA points, which will appear on their Pre-Employment Screening Program (PSP) data for three years, and if the assessed ten points led to an Out-of-Service Order (OOS), it could stay on their driving record for 15 years. Like any other traffic ticket, you should consult with a traffic ticket attorney before paying the fine.
Tulare County Traffic Ticket Attorneys
Call Bigger & Harman, (661) 349-9300, for help with any traffic ticket. Bigger & Harman practice only traffic law and have successfully defended many tickets in Visalia and Porterville traffic courts. Do not risk your career or CSA points for using a CB radio. Most LEOs would not ticket a trucker for using their CB radio, but some will have read the law and apply it literally.
Email us, attorney@biggerharmanlaw.com, a copy of your ticket with the personal information blackened out, and we will reply with your options.
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References:
The 2018 CA Driver Handbook .pdf
The DMV.CA.GOV portal
Thebalance.com A Guide to CSA Point Values and Transportation
AB 1785, Use of Wireless Electronic Devices
The Sacramento Bee article titled, California drivers are – believe it or not – putting down their cellphones by Tony Bizjak, dated February 6, 2018