I know – I’m a little behind the times – the new “hands free” cell phone law has been in effect since July of 2008. I was wondering if they were going to make changes to the law to overcome what I see are some basic glitches. What glitches?
Vehicle Code section 23123 makes it illegal to use any wireless phone while driving unless it’s equipped to allow hands-free use. Wired headsets and Bluetooth headsets are okay (providing both ears aren’t covered) and using a speaker phone feature is okay as long as you’re not holding the phone while you do it. The first fine is $20 and each violation is $50. Of course, the fines go way up when the court system is done adding in their “penalty assessments” to the base fine.
I know it’s “only” a $20 ticket and many people will pay the fine, kick themselves for not having a headset, then go buy one. Before you pay – can they really prove their case? The following is not meant to substitute for a consultation with me or another defense lawyer about fighting your cell phone ticket. If you want to make this argument in traffic court, be my guest. This is for discussion only. You’re using this information of your own free will… right? And of course, contents may settle during shipping, objects in mirror are closer than they appear and every other disclaimer you’ve ever read. Having said that…
Can the government prove the hands-free phone violation charge?
Scenario 1: The red light goes on and you hide your phone.
Take this hypothetical situation: You’re driving down the street with a cell phone pressed up against the side of your head, chatting away. Your local police turn on the red light and pull you over. You (of course) quickly hang up and put the phone in your purse, pocket or glove compartment. The officer approaches and asks for the magic three documents: license, registration and proof of insurance. You give him what he asks for, then he asks, “Were you talking on the phone?” What if you say, “What phone?”
There are case decisions that allow an officer to search a car for “evidence of a crime.” If you deny having a cell phone, but the officer believes he (or she) saw one, they technically could search your car for the phone. Where can they search? Anywhere a phone might reasonably be found. That means in your backpack, purse, briefcase, glove compartment, center console… everywhere in the passenger compartment. Anything illegal they come across could be fair game and admissible evidence. If they find something more substantial, that’s what you’ll likely face and a $20 cell phone citation is the least of your concerns.
Scenario 2: You hide the phone, but admit you were talking on it.
Same you, same cell phone, same officer. Now after asking for your documents, the officer asks, “Were you talking on a cell phone?” You say, “yes, officer. I was.” By admitting that there is a cell phone in the car, you may have eliminated the need to search. Of course, the officer will likely cite you, but it may avoid a search of the car. If they do search and find something more substantial, this may lead to an ability to suppress the evidence later. This is especially true if you admit you were talking on it and hand them your phone if they ask for it. Without further legal justification, they have no basis to search your car.
Scenario 3: You leave the phone in plain sight and say nothing.
This time, the officer pulls you over, you hang up and set your phone on the dashboard or front seat in plain sight. He sees the phone and asks if you were talking on it. You decline to answer. The phone being in plain view eliminates (hypothetically) the need to search your car. There’s visual confirmation that what they saw most likely was a cell phone. Assuming there are no other problems or violations, you may well get cited. Here’s where it gets interesting.
Suppose you want to fight that cell phone ticket?
Let’s say you get cited and want to contest it. I can envision the traffic trial:
The officer gets sworn in and testifies that on the “aforementioned date and time”, he saw an individual (he points at you) driving (fill in your car’s make and model here) somewhere in Orange County. He testifies he saw you holding something up to your head. He says he walked up, identified you and saw your phone sitting on the dashboard. Case closed? Not necessarily.
The law says “A person shall not drive a motor vehicle while using a wireless telephone. . .” unless it’s hands free. Has the officer (for traffic court purposes, the prosecution) proven beyond a reasonable doubt that you were in fact “using” the phone? Don’t most phones play music these days? It’s not illegal to hold up a transistor radio and listen to it while you drive. Who’s to say you weren’t listening to music? But what if the officer testifies your mouth was moving? What, people can’t sing along with music these days?
There’s no way they’re going to subpoena your cell phone records to prove it was in use at the exact moment the officer made their observations. You have a Fifth Amendment right not to testify and incriminate yourself. With all that, how do they prove beyond a reasonable doubt that you were using a cell phone? Especially if you push play on your phone in court and Beyonce’s latest (or Aerosmith or Beethoven – whatever your favorite is) starts playing & you sing along.
Food for thought.