Hands Off!

Every now and again a case comes along with a result that directly impacts the everyday lives of millions of people. One would not expect such a case to originate in traffic court, however.

But that was the backdrop for a recent case, People v. Nelson (2011) 200 Cal.App.4th 1083, in which Division 2 of the First District Court of Appeal affirmed a guilty judgment against Carl Nelson for violating Vehicle Code section 23123 – also known as California’s hands-free law.

The facts are simple and commonplace: Nelson was driving one morning in Richmond when he stopped at a red light. While he waited for the light to turn green, he picked up his flip-type wireless phone and began to dial a number, his motor running and car still in gear. As he began to move the phone to his ear, a motorcycle officer pulled up next to the driver’s side window. The officer saw Nelson using his phone and cited him for violating section 23123, which states that persons shall not drive on public roadways using a wireless telephone unless the phone is configured for hands-free listening and talking, and used in that manner while driving.

Nelson argued to the traffic commissioner at trial that he was not “driving” his vehicle when he used his wireless telephone since he was stopped at a red light. He based his argument on the California Supreme Court’s determination in Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753 that the term “drive” as used in Vehicle Code section 23512 (prohibiting driving under the influence of alcohol or drugs), requires proof of “volitional movement.”

Nelson was found guilty of violating section 23123 and the appellate division of the superior court affirmed his conviction. That court then granted Nelson’s request for transfer certification to the Court of Appeal because it thought it necessary to determine “whether the term ‘driving’ as used in section 23123 requires contemporaneous volitional movement of the motor vehicle as an element of the offense.”

In a rather long opinion, Justice Lambden held that it does not. The court employed statutory analysis, including a lengthy discussion of section 23123’s legislative history and similar Vehicle Code statutes that use the terms “driving” and “while driving.” The court also discussed several cases, including Mercer, which the court found easily distinguishable since it did not address fleeting stops. In the end, Carl Nelson (and all drivers texting while waiting patiently for the light to turn green) lost. But then again, was there was any other option?

The court put it this way: “We would also open the door to innumerable phone calls to and from drivers that commence during such fleeting pauses and are difficult to end quickly when traffic resumes – because, for example, of an employer or client to please on the other end of the call, an important voice mail message to listen to or finish, or an unexpected wait on hold encountered.” Any contrary result would have certainly thwarted the legislature’s intent and purpose of the statute – to control and restrict the use of hand-held wireless phones while driving.

So next time you’re stopped at a red light, consider your neighbors: while the woman who fixes her make-up in the mirror while driving to work is perfectly legal, the overachieving young associate who tries to type an answer to her boss’s e-mail before the light turns green, will be the one subjected to the fine. So Nelson – while amusingly simple factually – will have far-reaching effects on everyday Californians. At the very least, it will provide support for Siri, the new hands-free feature on Apple’s iPhone 4S.

Lastly, the Court of Appeal made clear that it was deciding only the narrow issue presented by the lower court and also that it had “determined section 23123’s application only regarding defendant’s circumstances, and not regarding the hypothetical examples he discusses.” So be on the lookout for the next case in which a defendant – waiting impatiently for the clearing of a bad accident – picks up the phone and calls (or texts) her husband to tell him that she’ll be home late.

One last interesting tidbit: Justice Richman – while concurring in the result – wrote separately to express his belief that the appeal could have been resolved without the extensive scholarly analysis of section 23123’s legislative history. So how long should the opinion have been? Just four paragraphs, which would have made this post significantly longer than the case on which it was based!