CA Vehicle Code (VC) Section 23123.5, Driving Offenses states that:
“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.”
Moreover, with the enactment of AB-47, Distracted Driving, on 1 July 2021, the DMV is now authorized to assess 1.5 Negligent Operator Treatment System (NOTS) points to a commercial driver convicted of a second offense within three years of illegal commercial motor vehicle (CMV) cell phone use.
Furthermore, the DOT FMCSA Mobile Phone Restrictions Fact Sheet “…restricts the use of all hand-held mobile devices by drivers of commercial motor vehicles (CMVs).” And, The DOT FMCSA 49 CFR Part 383.51, Paragraph 6.2.5, Disqualification of Drivers, makes it a “serious offense” for:
“Violating laws relating to prohibiting texting or using a handheld mobile telephone while driving a CMV.”
Although the documents say “operating” or “using” “while driving,” in CA, it is illegal to hold a handheld phone unless the vehicle is off the roadway and parked. Therefore, checking your text messages or calls while at a red light or stuck in a traffic jam is a violation of CMV cell phone use laws and regulations.
What Does a Second CMV Cell Phone Use Conviction Mean to Commercial Drivers?
Before AB-47, a cell phone use ticket meant getting someone to go to the county clerk’s office and paying the approximate $150 fine for a first offense or a nearly $260 fine for a second or subsequent ticket.
After the fine was paid, there was no further action required by the driver. However, after enactment of AB-47, a commercial driver — quite possibly even Lyft and Uber drivers — must consult a traffic attorney to establish whether it is feasible to dispute the ticket.
Some drivers think they can wait until a second ticket to dispute the charge in traffic court. However, getting it dismissed or reduced to a non-moving violation is likely easier when it’s your first time.
Traffic court judges understand the rigors of commercial driving and the trouble a moving violation can cause them. Therefore, they might agree to what is equivalent to a parking ticket in exchange for a larger fine and a show of remorse by the driver or their attorney.
Likewise, if a commercial driver foregoes the opportunity to challenge a first CMV cell phone use ticket and is convicted for a second offense within three years, they face a 60-day driver disqualification for a serious offense.
Once the DMV receives notification of a second illegal cell phone use conviction by a commercial driver, they will assess the 1.5 NOTS points, keep those on file in the driver’s CA motor vehicle driving record (MVR), and notify the DOT FMCSA of the conviction.
A 60-day driver disqualification could keep you on the sidelines without the ability to provide financial support to your family, and the fleet manager will probably not keep that driver position open for two months. Always consult a CA traffic attorney.
Consult Bigger & Harman, APC, When Issued a CMV Cell Phone Use Ticket
When you face an illegal CMV cell phone use citation in Placerville, CA, contact us immediately to discuss possibly disputing your ticket in Placerville Courthouse in El Dorado County.
Call us today at (661) 349-9300. Alternatively, use the handy contact form or email attorney@biggerharmanlaw.com.
Download our e-book, Protecting Your Commercial Driver License.
Se habla Español (661) 349-9755.
References:
The DMV Portal CA Commercial Driver Handbook.
The DOT FMCSA 49 CFR Part 383.51, Paragraph 6.2.5, Disqualification of Drivers
CA VC Section 23123.5, Driving Offenses & AB-47, Distracted Driving.
The DOT FMCSA Mobile Phone Restrictions Fact Sheet