Saturday Question

Mr. J sent the following question:

I have a question about texting. I understand that texting while driving is illegal. But what if I am stopped at a traffic signal waiting for the light to change? I am not driving – I am waiting. Any difference if I am just reading the text? If illegal and you saw me put the phone down once traffic started to move, would you give me a ticket?

As per usual, here is the boring CVC section:

23123.5 (a) A person shall not drive a motor vehicle while using an electronic wireless communications device to write, send, or read a textbased communication.

(b) As used in this section “write, send, or read a text-based communication” means using an electronic wireless communications device to manually communicate with any person using a text-based communication, including, but not limited to, communications referred to as a text message, instant message, or electronic mail.

(c) For purposes of this section, a person shall not be deemed to be writing, reading, or sending a text-based communication if the person reads, selects, or enters a telephone number or name in an electronic wireless communications device for the purpose of making or receiving a telephone call.

(d) A violation of this section is an infraction punishable by a base fine of twenty dollars ($20) for a first offense and fifty dollars ($50) for each subsequent offense.

(e) This section does not apply to an emergency services professional using an electronic wireless communications device while operating an authorized emergency vehicle, as defined in Section 165, in the course and scope of his or her duties.

So, that covers what the basis of the section is; however, the word ‘drive’ seems to be the crux of your question. In my opinion, unless the car is stopped and parked (as in on the side of the road or in a lot), you are considered to be driving. You are in constructive control of the vehicle when you are at a signal. The car is, more than likely, in Drive or in gear with the clutch engaged. That leads me to believe, and is the basis for my stand, that you are, in fact, driving.

In Mr. J’s question, he states “I am not driving – I am waiting”. Unfortunately for Mr. J, and with all due respect, it is the Officer’s definition of driving that will win out. That being said, however, if I saw you at a signal and you responsibly put the device away prior to moving your vehicle, I probably wouldn’t cite you.

I think this is one of those laws I would most assuredly fall on the ‘Spirit of the Law’ side. That’s not to say of course if you look like you need to be stopped and spoken to because you’re driving a P.O.S. and you’re rocking the gangsta lean, I wouldn’t use it as Probable Cause for the stop.

Hope that clarified things for you, Mr. J, and the rest of you, for that matter. And thanks for the positive thanks included in your email, Mr. J. I always appreciate the feedback and well wishes to my fellow brothers/sisters in blue (or tan, or *shudder* white).

Keep the questions coming, my friends. At last check, which was about 10 minutes ago, I’ve got two or three more questions before the well runs dry.

Please note: I reserve the right to delete comments that are offensive or off-topic. Snark is encouraged. Being a prat is not.

11 thoughts on “Saturday Question

  1. If said driver happened to be a little too inebriated whilst stopped for said traffic light, he would still be considered to be driving under the influence since he was still in control of said vehicle.

    However, that's a bit more serious than said texting.

  2. Officer Smith: How can said inebriated driver be in control of said vehicle if said inebriated driver is not in control of said inebriated drivers own bladder?

    I think I bit off more than I could chew with that comment. Even i am confused. It sounded right in my head.

  3. Here's a question:

    While I gather from reading your blog that you truly love the Wife and the little one, are there any less-than-respectable coworkers who are dumb enough to let cute girls flirt their way out of tickets?

    I ask because I see that you've let people off with warnings for being extra-polite, so clearly behavior towards a cop affects their decision to cite (or not cite).

  4. Smith-
    In CA, the vehicle has to actually move for a DUI. Even a millimeter- that's enough. Simply sitting in the car with the engine running is not enough (some states say "operating" as opposed to "driving," so a running engine gets you a deuce- this gives us fits when trying to determine an out-of-state prior, because its almost impossible to determine if the drunk would have been guilty in CA.)
    That being said, sitting at a light is virtually incontrovertible circumstantial evidence that the driver actually moved the vehicle- cars don't wind up in intersections by themselves.

  5. Nanny,

    I'm sure there have been those that succumb to the wiles of Y-chromosome deficient. It just seems silly to claim otherwise.


    I humbly disagree. There need be no movement if you can properly articulate constructive control of the vehicle. For example, car running, lights on, in gear, foot on brake, driver passed out behind the wheel.

    What you lawyer types decide to plea deal down to or straight not file to protect your conviction rate is entirely up to you.

    In my world, I'd absolutely arrest for DUI in a case like the one I described.

  6. Check this out:

    This is the jury instruction concerning the definition of driving. Thanks to Mercer v. Dept. of Motor Vehicles (1991) 53 Cal.3d 753, the vehicle MUST move. This really only comes up in the context of a drunk passed out in a parked vehicle. If the vehicle is in gear, I would probably take the case and argue that it is almost impossible for the vehicle to have NOT moved.

    But if the vehicle was in park, I would have to decline to file. Absent some other evidence, there is no way to prove beyond a reasonable doubt that the vehicle moved.

    I just had to settle a .13 deuce to a wet/reckless because the cop that arrested the drunk simply forgot to ask the guy if he drove! It started out as a DV 911investigation, and they found him sleeping in his truck about 700 feet from the house, in a parking lot, about 30 minutes after the call (you can hear him ranting in the background on the call, so the timing is pegged.)

    Its pretty clear what happened: when his wife called the cops, he got in his truck and started to drive, but realized he was too drunk, so pulled into the parking lot to sleep it off. But when the cop found him, he just woke him up and drove him back to the house, and did no DUI investigation AT ALL. No FSTs, no PAS, no questions about driving, nothing noted about keys in the ignition or the manner in which the vehicle was parked.

    The cop was so focused on the DV part of the case that he ignored the DUI. And the DV went away because his wife totally changed her story and was going to lie on the stand.

    The drunk would argue at trial that he always parks there because its closer to his bus stop and he has a bum leg or something. Its doesn't pass the smell test, because this happened on a Friday night- why would he park in a lot and walk to his house if he had a bum leg? But all he would need is a neigbor or bud to say that he parked there all the time, and I would be screwed. I couldn't justify bringing in 100 potential jurors and make them miss 2 days of work for such a dog case that I would probably lose.

    Moral of the story: approaching a slumped-over person in a vehicle is DANGEROUS. He might be playing possum and trying to lure you closer so he can introduce you to mister shotgun. Don't waste the risk on something as stupid as FORGETTING TO ASK HOW HE GOT THERE!!!! Of course, MC would never do something that dumb . . .

  7. DA,

    I think we can agree it comes down to a cop's articulation in a report and a decent investigation (locate witnesses, who has the keys, who is the R/O, driver statements, seat adjustment appropriate to suspect, injuries consistent with driver if TC is involved, covering the 40300.5 CVC bases, evidence in case of TC, etc).

    At the end of the day, I don't really care if you file or not. I sleep like a baby knowing I hooked shitbrick's drunk ass and he/she won't be killing anyone with his/her car tonite. That, and it's going to cost him/her a pretty penny regardless of the criminal outcome.

  8. One of the cool issues with your hunting grounds, MC, is that very few of your quarry qualify for a public defender, so you are probably looking at 5K just to get it dismissed.

    So keep hookin' 'em, because even if we don't gut 'em and grill 'em, they are still getting hammered.

  9. If the car is parked on private property, with a drunk inside it, even if it's running, it can't be DUI. If he's legally parked on the street, still not DUI. However if he's in the traffic lane, and you can articulate he is the driver, or WAS the driver, per VC 40300.5 it is a DUI. I believe MC already cited that section.

    If he's in a crash then you have to articulate that he was the driver of the car when the vehicle crashed to get a DUI case. I've heard fellow cops say they arrested for 'attempted DUI' when they saw a drunk stumble down the street, get into a legally parked car, and start the engine, and sit there. Cop would wait for the car to move, but the drunk stays in the car, never taking it out of park. Frustrated cop goes over and arrests the drunk for attempted DUI. Will never be filed. The most you have there is a PC 647(f) case, and a weak one at that.

    However I did arrest a guy who was drunk ( I think he blew a .14) for PUSHING his disabled car down the street for DUI. Key is he was drunk and in control of the vehicle. Our DA filed the DUI case and he was convicted.

  10. Booted-

    Your statements are confusing PC with elements of a crime. 40300.5 only covers probable cause for arrest- it has nothing to do with guilt or innocence of an enumerated crime.

    It is CERTAINLY NOT true that impaired on private property is not DUI. 23152 says "driving a motor vehicle," NOT driving a motor vehicle upon a highway (note that most CVC sections make that distinction- you can't be guilty of speeding at Infineon Raceway, for example, because it is private property and the statute clearly says "upon a highway," which, according to CVC 360, must be publicly maintained; 23152(DUI) specifically omits the term "upon a highway," because private property DOES NOT MATTER.)

    The reality is that there are very few factual situations where a peace officer will be aware of an impaired driver on private property. But that doesn't make it legal. It is, in fact, possible for a redneck at a hootenanny to see drunk ol' Uncle Jed do a few doughnuts in the parking lot after downing 30 Budweisers and do a citizens arrest. If a peace officer shows up and gets a Title 17 compliant test done within 3 hours, Uncle Jed is going down for 23152(b). But an officer standing outside the gate who saw the doughnuts could still drive onto the property and stop Uncle Jed, because his actions are a violation of 23103- reckless driving. And reckless SPECIFICALLY says that private parking lots are still covered. And once you have PC, a whiff of alcohol plus watery eyes, slurred speech, and an unsteady gait means you have a righteous deuce.

    Same thing for being "pulled over" while passed out on the side of the road. Legally parked on a street might give you some PC problems, but that doesn't mean its not DUI if I can find some evidence of driving. If your deuce was at a party 10 miles away 9 minutes before, and I can get people to testify to that, and he blows a .28, I'll take that any day. Just because you are going to have a hard time getting into the car to find your objective symptoms DOES NOT mean he's not DUI.

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