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.”
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