So, you are stalled in a traffic jam and you just couldn’t resist checking your texts or play a game while you wait. I mean you can’t go anywhere until the traffic moves, why not play a game while you’re waiting. Traffic jams are the hit parade of the day going in and coming out of LA every day. But, guess who else has nothing to do but wait for the traffic to move or write a cell phone ticket because Joe or Josie Citizen decided to call home while halted by traffic? That’s right, the California Highway Patrol (CHP) on their motorcycle on the median or break-down lane are waiting for an infraction. They are bored too and they get paid to write tickets for you to pay.

Many employers feel very strongly about their employees not using a hand-held device while driving, particularly while driving one of their commercial motor vehicles (CMV), although there are no points assessed for a cell phone ticket, any violation for which you are convicted, you must inform your employer within thirty days, regardless of whose vehicle you were using. Therefore, a conviction could put your job in jeopardy in the case of employers who have a zero-defect mentality.

California Vehicle Code (CVC) Section 23123

CVC 23123 applies to cell phone use while driving and states in subparagraph a., “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.” Subparagraph c discusses the use of the phone to call emergency numbers, such as law enforcement (LE), the fire department (FD), medical provider, or other emergency services. Additionally, there are exceptions for truckers using hand-held devices with a push-to-talk application, which could be an element of your defense.

A hand-held device can come in handy for many important functions in your car, but the best option is to get a hands-free device installed, then you can use it for Global Positioning Services (GPS) and for calls to home to see if anyone needs anything, or even taking business calls in route without the distraction of holding the phone to your ear or texting. The last is a definite no-no while driving. No matter how you feel or how physical adept you believe you are, texting while driving kills, period. However, drivers under 18 years of age cannot use the hands-free exception.

Using the “Trial by Written Declaration” Defense

In many cases, this is the best approach to a cell phone ticket. Just email us, attorney@markbigger.com a scanned copy of your cell phone ticket and the reason you believe you should not have been cited with a violation of CVC 23123, such as you were not using your phone or you were calling for emergency assistance, etc. and we will give you the legal basis for dismissal that fits your situation. Everyone has an excuse for why they should not have to pay a ticket, what the judge wants to read in your declaration is a legal justification. Your defense could be that you were not driving, you were stuck in traffic for 40 minutes, put the car in park and checked your GPS for an alternate route to use once you started moving again. There are no points assessed because this is not a moving violation so traffic school will not help. The only option is to fight the ticket or fold and admit guilt. If you were not guilty, why should you pay?

As stated above, the written declaration is only valid if you decide not to fight the ticket further, and truthfully for the first-time cell phone ticket that may be the wisest choice. If the judge did not like the legal justification on the written declaration, telling him in person will likely not make him like it any better. In addition, now you must pay court cost and additional attorney expenses. Whereas that is what we do, we see no sense of you wasting money to fight a first-time ticket. However, if you feel strongly about your innocence and want to pursue a court trial, we will vigorously defend you.

Bigger & Harman, APC

Many other attorneys handle a variety of areas of law, we only represent clients who have traffic tickets. We spend every day in the courtrooms in several counties in southern California, Los Angeles, Riverside, San Bernardino, Kern, and Tulare, to mention a few. We know the judges, the court clerk, and most of the LE officers who write tickets and often appear to explain their rationale for their citing an individual for a ticket. These are the people we meet and greet daily, so when there is a question, occasionally we can work it out with the LE officer prior to court. Give us a call today if you have received a cell phone ticket or any unjust traffic violation you wish to dispute, 661-349-9300. En español, llame al 661-349-9755.