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New Cellphone / Texting Law
By: Christopher J. McCann, Esq. (Copyright ã 2008)
On July 1, 2008, two important laws take effect concerning the use of cellular phones and other handheld communication devices. The first, Vehicle Code § 23123, prohibits all drivers from using a handheld wireless telephone while operating a motor vehicle, though drivers 18 years of age and over may use a “hands-free device.” The second, Vehicle Code § 23124, states that drivers under the age of 18 may not use any wireless telephone or hands-free device while operating a motor vehicle. A violation of either of these sections is punishable as an infraction. These laws do provide an exception to use a wireless telephone to make emergency calls to a law enforcement agency, a medical provider, the fire department, or other emergency services agency.
A first offense will result in a base fine of $20, and $50 for subsequent convictions; however, with statutory penalty assessments added in, the fines will actually be more than triple the base fine amount. In addition, while a conviction will appear on one’s driving record, the DMV will not add a violation point.
A law enforcement officer can initiate a traffic stop just for this infraction. While an officer always has discretion to give a violator a verbal warning for any infraction, the law will take immediate effect on July 1, 2008, and there will be no “grace period”. These laws only apply to drivers and not passengers, and they also apply to out-of-state drivers whose home states do not have such laws.
For non-commercial drivers, there is no exception for using hand-held cellular phones with a “push-to-talk” feature, but a push-to-talk feature attached to a hands-free earpiece or other hands-free device (i.e., a “bluetooth” device”) is allowed. The law does allow those operating a commercial truck, truck tractors (not including pickups), farm vehicles or tow truck to use a two-way radio operated by a “push-to-talk” feature. Other exemptions include operators of authorized emergency vehicles during the course of employment, and drivers operating a vehicle on private property. Also, unlike many vehicle codes that apply to those riding bicycles, the new cell phone laws only apply to “motor” vehicles.
DRIVERS 18 AND OVER
Drivers 18 years of age and over will be allowed to use a “hands-free” bluetooth device to talk on their wireless telephone while driving. So what does “use” mean exactly? Well, the new laws do not prohibit drivers from dialing their phones, i.e., manually punching in a phone number; however, once a number is dialed, motorists must either use a bluetooth device (covering one ear only) or the speakerphone function. It is also noteworthy that sending or reading text messages and pages is not specifically prohibited by these laws, although a driver can always get a citation for “not operating a vehicle in a safe manner.”
DRIVERS UNDER 18
Regardless of whether they have parental permission or have even been emancipated, drivers under the age of 18 may not use a wireless telephone, pager, laptop or any other electronic communication or mobile services device to speak or text while driving in any manner, even using “hands-free” bluetooth device. This includes using hands-free features built in to the vehicle. There is no exemption for minors in the presence of their parents either; however, similar to adult drivers, minors are permitted to use hand-held devices to call police, fire or medical authorities emergency situations. Also like adult drivers, those under 18 years of age can be pulled over just for using a handheld device while driving. This type of violation is commonly referred to as a “primary” violation. However, if a minor driver is found using a hands-free device, it is considered a “secondary” violation, which means that they can only be cited for it if he or she has already been pulled over for a primary violation.
Mr. McCann is a criminal defense attorney in Santa Ana, California.
Christopher J McCann