By on November 17, 2011

In a decision with wide-ranging implications for people who might check their email on an iPhone while stopped at a traffic light, the California Court of Appeal ruled Monday that it was a crime to use a phone at any time behind the wheel of a stationary or moving vehicle.

Three days after Christmas in 2009, a motorcycle cop in Richmond pulled up to a red light and noticed Carl Nelson, driver of the stopped car next to him, appeared to be making a cell phone call. Nelson put down the phone as soon as he saw the officer. Nelson said he was just checking his email while waiting for the light to turn green. The Golden State banned the use of handheld cell phones while driving in July 2008.

“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,” the law states.

A subsequent update to the statute made it also illegal to read or write an email while driving. Nelson was fined $103, and he challenged the fine by arguing that he was not “driving” when he used the phone. He added that if the prosecutors were correct, drivers stuck in dead-stop traffic for hours behind a major accident would not be allowed to make a call while the road is cleared.

“One can [use] a cell phone while stopped at a red light (because it is safe to do so) without having used it while moving the vehicle to the red light and without using it when one resumes one’s voyage after the traffic light turns green,” Nelson argued. “Thus, the fact that one is using a cellular phone while stationary simply cannot give rise to a reasonable inference that one was using the phone before or after the period that one was stopped at a red light.”

The three-judge appellate panel was not persuaded. It argued that the word “drive” applies even when the vehicle is stopped at a traffic light, citing a number of cases interpreting search and seizure and drunk driving laws.

“Any mom or dad driving kids to school can expect to stop while parents in cars in front of them are unloading their kids,” Justice James A. Richman wrote in a concurring opinion. “A shopper driving to a store near Lake Merritt in Oakland may have to stop while a gaggle of geese crosses the street. A couple going for a Sunday drive in West Marin County may have to stop for a cattle crossing. And, of course, 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.”

The court majority went on to argue that allowing cell phone use in motionless vehicles would create a safety hazard.

“Were we to adopt defendant’s interpretation, we would open the door to millions of people across our state repeatedly picking up their phones and devices to place phone calls and check voicemail (or text-based messages) every day while driving whenever they are paused momentarily in traffic, their car in gear and held still only by their foot on the brake, however short the pause in the vehicle’s movement,” Justice James Lambden wrote. “This could include fleeting pauses in stop-and-go traffic, at traffic lights and stop signs, as pedestrians cross, as vehicles ahead navigate around a double-parked vehicle, and many other circumstances… Drivers paused in the midst of traffic moving all around them (behind them, in adjacent lanes, in the roadway in front of them) would likely create hazards to themselves and public safety by their distracted use of their hands on their phones and devices.”

A copy of the decision is available in a 220k PDF file at the source link below.

Source: PDF File California v. Nelson (Court of Appeal, State of California, 11/14/2011)

[Courtesy: Thenewspaper.com]

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38 Comments on “California Court Criminalizes Using Cell Phone While Stopped...”


  • avatar
    240SX_KAT

    Just change the wording of the law from ““A person shall not drive a motor vehicle…” to “A person shall not operate a motor vehicle…” No more ambiguity. I guess critical thought is no longer represented in government.

    • 0 avatar
      dismalscientist

      Natch. “Operating” could be interpreted as sitting in a parked car and fiddling with the radio. Ticketing someone for doing that, while on a cell phone, is obviously ludicrous.

      “Driving” is fine, it’s this Nelson fellow who is an idiot for thinking that being at the wheel at a red light does not constitute “driving.”

      • 0 avatar
        redav

        Another flaw in his argument is that when sitting at a red light, he must be aware of when the light turns green so as not to be a hindrance to other vehicles around him. Therefore, his attention must remain on the road and traffic control devices even when his vehicle is not in motion.

  • avatar
    Jimal

    Typical spin by The Newspaper. At most this is a clarification of what is a pretty simple law (that I happen to disagree with). I agree that “operating” would remove all ambiguity from the wording of the law, to say you are not driving because the car is stationary is splitting hairs.

  • avatar
    steeringwithmyknees

    so true about critical thought no longer required. And not just the government, either.

  • avatar
    GS650G

    If the car isn’t moving please demonstrate HTF this is dangerous? If you pull over are you still driving? According to DUI rules you still are. And of course hefty fines are part of the payoff, this being CA and all.

    • 0 avatar
      psarhjinian

      The theory is that you’re not aware of what’s going on around you when you start moving again, and might key into the movement of traffic and/or the light change and/or someone honking at you without paying attention to surroundings.

      Anecdotally, I’d say it’s valid. I know I’ve almost rushed into traffic in error under those circumstances (stopped at light, checking phone, saw traffic in the other lane moving, wasn’t aware it was an advance-green)

      • 0 avatar
        fvfvsix

        I’ve seen people do that without having a phone anywhere in sight. Sorry, but correlation is not causality.

      • 0 avatar

        Agree completely. I would add that people are so addicted to their smart fones that they are likely not to put them down when they start driving again. I’m with California on this.

      • 0 avatar
        redav

        fvfvsix, arguing causality is irrelevant.

        People can drive poorly without drinking, but law prescribes that one shall not drink and drive. In CA, the law prescribes that one shall not use a cell phone while driving–like drinking, the fact that one may be distracted without a cell phone is immaterial to the law.

        Causality is an argument for whether the law is well-conceived, not about the enforcement of the law. Data does prove cell phone use and drinking harm driving, so it’s unlikely the law to be struck on those grounds, either.

    • 0 avatar
      GS650G

      Sorry, I’m not buying it. Car not moving, no harm. But since I don’t live there I’m not concerned about their laws.

    • 0 avatar
      Jellodyne

      The problem is that the whole argument of ‘I was just doing it at a stoplight’ was bs. If you’re behind the wheel with the engine running and the car in gear, at a stoplight, you’re operating the car. Duh, of course. Anyone who says differently is probably this guy’s lawyer.

      If you oppose the law, fine. But here’s a guy who was breaking it, caught, and unable to weasel out of it. Not a problem, and certainly not an extension or a new wrinkle in an existing law.

      Incidentally, a crappy reason to oppose the law is because you think you have the freedom to endanger other motorists slightly more than you would if you were not yaking to someone while driving. A stupid reason is the gubermint-grabbin-power-Obama-bad-activist-judges-Glen-Beck-said-so. A good reason would be the studies which show the problem with talking on the phone and driving isn’t the extra mechanical difficulties of holding the handset while you drive. The real problem is the distraction cause by your conversation, which is just as bad with a hands-free device as it is with a phone held up to your ear. So basically this law doesn’t address the problem and penalizes those who don’t have a bluetooth system for no actual good.

  • avatar
    MrGreenMan

    People always say The Newspaper is biased or takes things out of context. It’s hard to find what context that paragraph from the decision would have been in context and OK. If you’re stopped at a red light, traffic isn’t moving all around you — it’s stopped in your lane and it’s moving in some cross direction. It is a busybody concern what you do when your vehicle is stopped.

    The same legal system is always going to find you at fault if you hit a vehicle that is not moving. If you roll off the brake while using your phone, you are no longer stationary. It seems like a simple matter of finding of fact — was the vehicle stationary? — which the revenue enforcement officer admitted per the story.

    As a technical point, the brakes on certain Saturn Auras apparently do a better job at holding it still than the transmission in park…and manual transmissions rely on a brake instead of a transmission interlock to keep a vehicle in position…and often you’ll shift into neutral at that stoplight… so the judge’s attempt at humor “their car in gear and held still only by their foot on the brake” creates a nice window for future technical litigation. Everybody wants to be Judge Judy with the zinger in the decision.

    This reminds me of one of the more interesting decisions a few years back, wherein a court found a man guilty of drunk driving because, although he was in a parked car in the parking lot, he had turned the heater on, and so the key was in the ignition, which was tantamount to “driving” for that paragon of mastery of the English language. That judge was wrong, too.

    • 0 avatar
      EEGeek

      Certainly the headline is prejudicial (don’t want to say the “b” word around here, right?) As Pch101 points out, the legislature criminalized using a cell phone while driving, and the court ruled (rightly, I think) that this case is covered by the law. But the headline essentially says to me that the court did this by whim.

      The real problem that The Newspaper has is with the statute, and would be more honest to put a TTAC spin on the headline. Something like “CA yack drivers screwed. Again. Still.” But the headline used probably gets more clicks, and that’s the name of the game, right?

      • 0 avatar
        Pch101

        But the headline essentially says to me that the court did this by whim.

        I’ve gotten to the point that I just assume that The Newspaper will get the facts wrong. An article from The Newspaper that doesn’t contain some sort of factual error is unusual.

  • avatar
    jmo

    I think it’s a very bad idea to pass a law that will be ignored by upwards of 80% of the population. It breeds contempt for the law.

    • 0 avatar
      Jimal

      Which is why I’m against this law. You cannot and will never legislate common sense.

    • 0 avatar
      dismalscientist

      25% of South African men have admitted to committing rape ( http://news.bbc.co.uk/2/hi/africa/8107039.stm ). Is that grounds for repealing laws against rape? Or maybe rape laws should be repealed just for the rapists (of whom 100% – that is, upwards of 80% – have committed rape, of course)?

      The law is in place because driving while on a cellphone impairs one’s driving, and raises the odds of one maiming or killing an innocent motorist or pedestrian.

      The “contempt for the law” argument might make sense with say, a widely evaded tax, where there are alternative means of levying a tax, but not with an action that’s inherently destructive.

      • 0 avatar
        GS650G

        Are you really equating rape with cell phone use?

      • 0 avatar
        Jellodyne

        Yeah, I’m pretty sure what he was trying to say was “rape is exactly the same as making a phone call.” Certainly he wasn’t using an extreme example to demonstrate that just because a large number of people are going to break a law, doesn’t mean the law shouldn’t exist. Because that would just make too much sense.

      • 0 avatar
        dismalscientist

        Not equating rape with cell phone use. jmo and jimal stated a principle without qualification. The application of that principle here is unsound. Contempt for the law should not always be met with a repeal of the law.

        And several studies suggest that driving while on a cellphone is as threatening as driving drunk. If there were some locale where drunk driving reached as high as cellphone use during driving, should DUI laws be repealed too?

        Drawing a parallel =/= Equating.

      • 0 avatar
        Jellodyne

        Incidentally, driving drunk used to practically be a national pastime. Driving home from bar was considered normal behavior, and when drunk driving laws were first passed, an awful lot of people ignored them.

      • 0 avatar
        Pch101

        The law is in place because driving while on a cellphone impairs one’s driving, and raises the odds of one maiming or killing an innocent motorist or pedestrian.

        That’s a great argument, except that there isn’t much to support it.

        The court made the right decision with respect to this law; there wasn’t another reasonable way to interpret it. But the law itself doesn’t really work.

        Phones have become this year’s version of the 55 mph speed limit: a law championed in the name of safety, but with only dubious claims to support it. These laws aren’t effective, and the relationship between conversations on phones and crash rates would suggest that it may be the opposite of what you think that it is.

        Fatality rates among phone users are actually lower than they are for other drivers. The same thing cannot be said about comparisons of drunk drivers to sober ones. The comparisons between phone usage and DUI make for great headlines, but they don’t hold up under scrutiny.

      • 0 avatar
        Jimal

        I don’t think dismalscientist is trying to equate cell phone use with rape; but I also think his analogy is flawed. I don’t want to get into the nitty gritty of explaining why because it is way too easy to sound like I’m trying to justify the unjustifiable.

        The better analogy for cell phone laws is Prohibition. When you criminalize something by statute that most reasonable people do not consider to be criminal those people tend to ignore the law. Add to it the selective enforcement of anti cell phone laws and the fact that police officers are constantly driving around with a phone to their ear (when I asked about this hypocrisy I was told that police officers are exempt because they have special training. I’ve found no evidence of “special training” of this sort.)

        Here in Connecticut they’ve had these distracted driving laws on the books for a few years now. I still see people driving and talking on their cell phones.

        Stupid laws do nothing but create a society of scofflaws.

  • avatar
    Pch101

    the California Court of Appeal ruled Monday that it was a crime to use a phone at any time behind the wheel of a stationary or moving vehicle.

    In this case, it would be the California legislature that made that decision. The court didn’t make the law, it interpreted it.

    he challenged the fine by arguing that he was not “driving” when he used the phone.

    And that was a really lousy argument. The court would have to be hopelessly harebrained to believe that every car that is stopped at a traffic light is not being “driven” until the light turns green. His argument both defies common sense and doesn’t conform with the existing statute. Why he even bothered to take this angle, I don’t know.

    • 0 avatar
      GS650G

      The court “decided” he momentarily paused his driving, then decided what the CA legislature meant. Both are opinions not legislative decisions.
      Dark tinted windows would be a good idea in CA. The cop can check his look in the mirrored glass as you snap his picture for facebook and text it out.

      • 0 avatar
        Pch101

        The court “decided” he momentarily paused his driving, then decided what the CA legislature meant.

        You apparently didn’t bother to actually read the case.

        The defendant tried to argue that he wasn’t driving. The lower court heard that argument, but rejected it and convicted him. The appellate ruling, which is discussed here, upheld the conviction.

        The “I’m not driving when I’m stopped at a light” argument is pure nonsense. The courts rejected that argument, based upon a reasonable interpretation of the law. Per Section 305 of the California Vehicle Code:

        305. A “driver” is a person who drives or is in actual physical control of a vehicle. The term “driver” does not include the tillerman or other person who, in an auxiliary capacity, assists the driver in the steering or operation of any articulated firefighting apparatus.

        The court in California has previously ruled that a guy asleep behind the wheel of a parked car was not driving. The defendant in this case tried to extend that argument to a person who wasn’t asleep and who was operating the vehicle in traffic. His argument failed.

        Given the statute above, the argument made in this case was beyond weak. It should be obvious that someone who is stopped at a light waiting for it to change is “driving” his car for the purposes of the statute.

        Only an activist court with no regard for existing law could have interpreted it differently than what happened here. And I get the feeling that you’re the kind of guy who normally gripes about “activist judges.”

      • 0 avatar
        redav

        In an automatic that is in gear, a driver must actively depress the brake pedal to control the car such that it remains at a stop.

        Therefore, the person behind the wheel is controlling the car even when it is not in motion (by preventing it from being in motion). As the court said, such activities are an inherent part of ‘driving,’ which is a viewpoint supported by the legal definition.

  • avatar
    DenverMike

    Mine is Velco’d to steering wheel and I’ll talk, text and surf the webs while I’m driving around so california and have yet to have problem. May not be the safest or legallest (?) but keeps my eyes partly on the road. I just sent this in stop-n-go traffic. California can ki$$it!

    • 0 avatar
      Dukeboy01

      It’s going to be totally awesome to find out how far your airbag embeds your phone into your face if you’re ever in an accident.

    • 0 avatar
      alex159569

      Your second comment is comically lame. Are you really saying that the Velcro will hold your phone to the cover even if the bag blows? The badges weigh probably 1/50th of your phone’s weight, and are held in with long metal clips or “plasti-melted” on and extremely difficult to remove. There is no comparison to a Velcro-attached phone here, unless you source yours from Spiderman or something.

  • avatar
    daveainchina

    Can we get this law passed around the world? Some things just shouldn’t be done at the same time.

    Especially as smartphones require much more attention than a simple phone.

    Anyway I’d love to see this law passed all around the USA. This to me is a safety issue and a no-brainer. Sadly people are very bad about safety regardless of where they are.

  • avatar
    wsn

    If I were the cop, when he claimed that he was not driving, I would simply fine him for illegal parking in a busy street and idling the engine.

  • avatar
    John Horner

    The court got this one right. Now if only my fellow drivers here in California would bother to obey this law and the other traffic laws.


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