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Thursday, June 3, 2010

Barrister Bits: Hands-Free Cellphone Laws

DEAR READERS: Do you have a legal question that is burning on your mind? If so, please email me. Names will remain confidential. Every inquiry may not be published, although we will publish as many as possible. This Q & A Legal Column is intended as a community service to discuss general legal principles and does not create an attorney-client relationship.

Q. My chiropractor told me that police officers are exempt from California’s cell phone laws. Seems a bit unfair that the men and women in blue can chat away on their cell phones, and then freely hand-out tickets to us. Does this ring true?

Signed: Aligned and Hands-Free

Dear Aligned: By now, one would think that the cell phone laws would be well-tested and understood. Yet, since the laws took effect over 1 ½ years ago, confusion abounds. There are two primary sections of the California Vehicle Code that are in play--one for drivers over 18 years (CA Vehicle Code sec. 23123) and the second one for drivers under 18 years old (CA Vehicle Code sec. 23124). Because it is a state statue, the law applies to any driver within the borders of our Golden State…residents and tourists alike.

The smartest way to obey the law is to avoid using a cell phone while driving so there is no grounds for dispute. Some Californians have been cited for simply picking up their cell phone to check the time. The citation is hard to fight in court as it is often your word against the police officer’s word. Bottom line: If you are over 18 and driving, you must use a “hands-free” device. Translated, you must use a Bluetooth or the speaker feature on your cell phone, as long as the phone is not in your hand (although it can be in your lap).

As with any law, there are exceptions. For example, you can “hand-hold” your cell phone if you are on private property, or if you need to make an emergency call. “Emergency” is a call to the police, fire, or your doctor. Calling your partner to grab an extra tofu at Andy’s is not considered an emergency.

The law also provides an exception for certain vehicles, such as commercial motor trucks, farm vehicles, tow trucks, and yes…”emergency services professional” while operating an authorized emergency vehicle—which is broadly defined and includes our police, sheriffs, fire departments, etc. So, your chiropractor is right—police are exempt as long as they are operating an authorized emergency vehicle, like their police car.

Now, if you are under 18, you are not allowed to use the cell phone at all—not for texting, calling, videos, anything…even if it is “hands-free”. Nada. No cell phone use at all allowed.

What are the fines? $20 for the first offense and $50 for the second. So by now you may be thinking, “That’s not so bad, I can risk it”! But wait…once you are ticketed, other “fees” will likely be added, such as a “conviction assessment”, a court security fee and a traffic administration fee. By the time the tally is final, the first offense typically will cost you around $142 bucks! Plus, to add salt to the wound, the conviction will go on your driving record (although currently you will not be assessed any “points”). One survey estimates that the CHP issued 234,000 tickets through 2009 for violating the cell phone laws.
As of this writing, the original author, State Senator Joe Simitian, has introduced SB 1475 which adds even more punch. If passed, the new law would increase fines to $50 for the first offense and $100 for the second, plus will cost the driver One (1) Point on their driving record. The introduced legislation would also ban bicyclists from talking on a cell phone without a headset.

So glad you asked the question. I think while driving I’ll just hum the “Roadhouse Blues”… “Keep your eyes on the road, your hands upon the wheel”!

Debra A. Newby is a resident of Monte Rio and has practiced law for 28 years. She is a member of the California, Texas and Sonoma County Bar Associations. She maintains an active law office in Santa Rosa and emphasizes personal injury law (bicycle/motorcycle/motor vehicle accidents, dog bites, trip and falls, etc.) and expungements (clearing criminal records). Debra can be reached via email (, phone (707-526-7200), fax (526-7202) or pony express (930 Mendocino Avenue, Suite 101; Santa Rosa, 95401).

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