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California residents need to know what distracted driving is and how law enforcement goes about proving your guilt. The use of cell phones plus anything that will cause the driver to take their hands off the wheel or be distracted from their driving is dangerous to all road users. However, most drivers do not make the LEO prove their guilt. Most are all too willing to hand over their hard-earned money as if they owed it, whether guilty or innocent. 

According to the  Bureau of Justice Statistics (BJS), 40% of citizen contact with law enforcement is due to a traffic incident, and only about 5% of those who receive a ticket challenge it in court.

The Erroneous Catch-22 of Challenging a Distracted Driving Ticket

Most believe they don’t have a chance without an attorney, and an attorney will cost more than the fine. They think it is a Catch-22. They are probably about right on the first assumption, even attorneys who primarily practice in other areas hire traffic attorneys to resolve their tickets.

The second assumption is likely from watching too much criminal law on TV and assuming that they will have to pay a retainer and get charged by the hour. In most cases, this is not the case with traffic attorneys. Most traffic attorneys work with a fixed fee, and regardless of how many hours they spend to resolve your ticket, it does not change, nor do they require a retainer.    

Distracted Driving

Distracted driving in California is a primary offense for adults caught texting, calling, or merely holding their cell phones for anything other than an emergency. However, it is not always the case of “guilty as charged.” The driver could be holding what looks like a cell phone and get a ticket. It is not up to you to prove you were not guilty of distracted driving. The burden of proof belongs to the State. The use of cell phones is allowed for adults under the condition that a hands-free mode is utilized.

Motorists under the age of 18  are charged for a secondary offense; cell phones for persons under 18 are prohibited. Once again, the LEO cannot stop a person they suspect of being under 18 and using a hands-free device to communicate. That is what is meant by a secondary offense. The reason for the stop must be other than using a hands-free device, or a primary offense.

It is not easy to prove a distracted driving charge as it is not dependent on physical tools; therefore, the proof is dependent on the physical observation of the traffic police. The police are mostly looking for three offenses that are related to distraction. The use of handheld portable entertainment devices, a display screen visible to the driver, and the handheld use of communication devices are the main things an officer looks for before issuing a ticket.

A driver must consult a traffic ticket attorney to help them challenge the case in court after the ticket is issued. Some portions of the CA Vehicle Code allow a driver to use their cell phones while driving. It is permissible that drivers can use cell phones in case of emergencies.  

CA Vehicle Code (CVC) Section 23123.5, Public Offenses

The California wireless communications device law, which took effect in January 2009, states that drivers cannot use cell phones for any reason, including for navigation or music. The handheld wireless telephone law took effect in January 2008. It placed a ban on reading, sending, and writing messages while behind the wheel, even while stopped in traffic or at a traffic control device (red light).

Consulting an Attorney about Distracted Driving

Drivers who have been given a ticket should consult an attorney to help them resolve their traffic tickets. The lawyer can gather evidence that provides a “reasonable doubt” of the guilt of their client. 

Traffic attorneys help offenders have their tickets dismissed or establish “reasonable doubt.” This act will help in keeping their record clean, which could have dire consequences otherwise. A mark on a driver's record may affect their ability to pass a background check, their credibility when applying for some jobs, or high-level private college and university admissions. 

Truck drivers who are convicted at the state level of a cell phone violation can receive a civil penalty from the FMCSA of $2,750. Why risk it? Get assistance from a professional traffic attorney.

Distracted driving is an infraction in California, which has a small fine, but could have severe consequences. The burden of proof is on the State to prove you were driving distracted.. Consult an attorney.

Distracted Driving Attorneys for Kern County, CA 

Call Bigger & Harman, (661) 349-9300, when you have been accused of distracted driving in Kern County. Se habla Español (661) 349-9755.

We are traffic attorneys who protect the driving privileges of CA drivers in Traffic Court and DMV NOTS Hearings.



The 2020 CA Driver Handbook.pdf

The Bureau of Justice Statistics (BJS)

CVC Section 23123.5, Public Offenses

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