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.