The Los Angeles DUI Law Blog

Appellate Court: Cellphone at Red Light Still Violates Hands-Free

Richmond motorist Carl Nelson thought he found a loophole in California's "hands-free" law preventing motorists from using their cellphones while driving. Nelson argued before the First District Court of Appeal that a car is not moving when you're stopped at a red light; thus, drivers should be able to use their cellphones. Interesting theory, but the appellate court didn't buy his argument, ruling on Monday that drivers are still considered "driving" while at a stoplight, reports the San Francisco Chronicle.

Nelson was given a $103 ticket for using his phone while at a stoplight in December 2009. Appealing his citation, Nelson argued that the 2007 state distracted driving law applies only when you are in a vehicle in motion. Under the law, all drivers are prohibited from using cell phones while driving. Officers may also cite a driver for using a cell phone without any other traffic offense taking place.

"Driving requires volitional movement, and when you're stopped at a light, you're not moving," Darren Kessler, Nelson's lawyer, told the Chronicle.

Interestingly, Nelson based his theory on a 1991 California Supreme Court ruling that held a drunk man was not committing a DUI when he was found passed out on the steering wheel of his car that was parked legally with the motor running. So it really is better to pass out in your car drunk instead of attempting to drive home, but we digress.

It was a creative appeal for a traffic ticket and interesting enough to end up in state appellate court. But the justices put the smackdown on Nelson's loophole theory, stating the the law would be threatened if drivers were allowed to use cellphones during "fleeting pauses," according to the Chronicle. It also differentiated the two situations because the drunk driver had been parked, while Nelson had been on the road.

Nelson's appeal will likely not be the last in driver's creative attempts to get out of pricey tickets. In its ruling the appellate court felt it did not need to discuss other scenarios, such as if a driver is stuck in bumper-to-bumper traffic and needs to phone home.

Before you pull out that cellphone on the 405, however, ask yourself if you want to go through the cost and time of a ticket and an appeal.

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