If you’re a commercial driver with a second cell phone use in a CMV ticket, and you’re thinking about paying the fine and moving on, stop and reconsider.
Officers monitor the Donner Pass Weigh Station very closely for distracted drivers. Many drivers are surprised to learn that they are already on CCTV cameras being observed by CHP inspectors as soon as they pull into the queue.
CHP inspectors can even check for drivers putting on their seatbelts or using their phones.
Since July of 2021, the CA Assembly and the Governor have authorized the DMV to assess 1.5 NOTS points against a commercial driver’s CA motor vehicle driving record (MVR) that will remain there for up to three years.
“Notwithstanding subdivision (f) of Section 12810, a violation point shall be given only for a conviction of a violationof subdivision (a) of Section 23123, subdivision (a) of Section 23123.5, or subdivision (b) of Section 23124, occurring on or after July 1, 2021, that occurs within 36 months of a prior conviction for the same offense.”—AB-47, Distracted Driving.
Therefore, in addition to the $260 fine for a second illegal cell phone use in a CMV paid fine or conviction, the DMV will assess NOTS points.
Further, regardless of whether it is a repeat or first time offense, they can notify the DOT FMCSA, which will assess ten CSA severity points. That is the highest risk category under the Behavior Analysis and Safety Improvement Category (BASIC). It will be placed in the Unsafe Driving paragraph of BASIC.
That’s the same as excessive speeding 15+ mph over the limit or reckless driving.
Many drivers get ticketed for calling home while stuck in traffic or at a red light. Imagine having that on your Pre-employment Screening Program (PSP) record for up to three years because you checked in with the family.
Defining Cell Phone Use in a CMV
Holding a phone to speak is a violation of California traffic code and FMCSA rules. Officers at the “Chicken coop” in Truckee look for these behaviors.
Since it doesn’t matter whether you were merely picking up the phone to get your logbook and shipping papers or whether you are calling someone on the phone, the inspector can write you up if he sees the phone in your hand.
Reading a text message is also strictly forbidden while driving. One button press is the limit for any hand-held device, which must be mounted. Violations often happen while waiting at traffic lights or stuck in traffic.
FMCSA rules are very specific about what constitutes a violation. You must be in a seated, restrained position to use mounted devices. Reaching for a phone that requires unbuckling is illegal.
However, if you are convicted of violating a state statute pertaining to cell phone use, the FMCSA will assess ten CSA severity points and the appropriate time-weights, which will become a part of your PSP, and affect your carrier’s Safety Measurement System (SMS) percentile.
Although many drivers believe these points do not impact them, if it raises their carrier’s fleet insurance or leads to FMCSA intervention, it could.
The Consequences of a Second Serious Offense at the FMCSA
Unsafe Driving is operating a commercial motor vehicle (CMV) in a careless or reckless manner, including speeding, improper lane changes, following too close, or talking or texting on a cell phone, and others, while driving a CMV.
In California, you could be ticketed by the CHP for holding your phone.
“A person shall not drive a motor vehicle while holding and operating a handheld wireless telephone or an electronic wireless communications device unless the wireless telephone or electronic wireless communications device is specifically designed and configured to allow voice-operated and hands-free operation, and it is used in that manner while driving.”—CA Vehicle Code (VC) Section 23123.5, Public Offenses.
The High Price of Distraction
Truckee is a high-enforcement zone for commercial vehicles on I-80. The CHP checks for electronic device use during routine weigh station stops.
A second conviction results in 1.5 NOTS points on your record. The DMV then notifies the FMCSA about your specific violation. Your employer will see this via the Employer Pull Notice program.
Federal penalties for drivers can reach up to $2,750 per offense. Carriers may face fines as high as $11,000 for allowing it. These fines, although rare, are a massive burden for any professional driver or carrier.
Why Hire a Traffic Violation Attorney?
We help drivers fight cell phone use in a CMV tickets. Our team reviews the evidence for any technical or legal errors. We aim for a dismissal, or an alternative violation that could shield the driver from an FMCSA disqualification.
CDL ticket attorneys understand the nuances of Nevada County courts. Do not just pay for speeding tickets or cell phone citations. Paying the fine is the same as admitting your guilt.
A ticket for cell phone use in a CMV is serious. You have the right to challenge the officer's version of events. We provide the strong defense you need in traffic court.
Discuss Your Options with Bigger & Harman When Ticketed for Cell Phone Use in a CMV
CDL holders must consult a traffic attorney to protect their record. We help you avoid traffic court appearances while you keep driving. Our goal is to keep your driving record and PSP clean.
A second offense can lead to a 60-day disqualification from driving. Do not let one mistake ruin your professional driving career. We review every detail of your I-80 traffic stop.
Call us at (661) 349-9300 for a free consultation today. We also help with Español at 859-1177. Your career is too important to leave to chance.
Use our secure contact form online to arrange a free consultation, or email us at attorney@biggerharmanlaw.com.
Download our e-book, Protecting Your Commercial Driver License.
❓ Frequently Asked Questions (FAQ) Section
Q: What counts as cell phone use in a CMV?
A: Although the interpretation is up to the officer writing the ticket, in court, cell phone use is defined by the CA VC. Just “holding” a cell phone or wireless device is against the law, even if you currently weren’t using it.
Q: How many points go on my CDL record?
A: The CA DMV will assess 1.5 NOTS points for a second cell phone use conviction or paid fine within three years of the last, in accordance with AB-47 and CA VC 12810.5. Any cell phone violation carries 10 CSA points for unsafe driving with the FMSCA, which will remain on your PSP for three years.
Q: Can a traffic attorney help me challenge a cell phone use ticket in the Truckee Courthouse?
A: Bigger & Harman regularly defends commercial drivers against illegal cell phone use in a CMV in the Truckee Courthouse. Contact us today.
References:
CA VC Section 12810.5, Negligent Operator Actions, 23123.5, Driving Offenses & AB-47, Distracted Driving.
The DOT FMCSA Mobile Phone Restrictions Fact Sheet.
The Employer Pull Notice (EPN) Program website.
The DOT FMCSA 49 CFR Part 383.31, Paragraph 6.2.7, Notifying Employer of Convictions.
The DOT FMCSA 49 CFR Part 383.51, Paragraph 6.2.5, Disqualification of Drivers.