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November 29, 2011

In case you’re wondering how detailed you should be regarding your company policy on the use of a cellular phone while driving and whether checking email at a red light is okay, a recent California Court of Appeals has answered that question for you.

A California Vehicle Code provision that forbids using a cell phone while driving applies to the use of a phone while the driver is stopped at a red light, the California Court of Appeal,
First District, held Nov. 14. (People v. Nelson, Cal. Ct. App., No. A131301, 11/14/11)

The provision, Cal. Veh. Code § 23123(a), makes it a traffic infraction to “drive a motor vehicle while using a wireless telephone” unless the phone is designed to be and is being used

The defendant claimed that although he used a standard cell phone while in his car, he was not “driving” within the meaning of the law because he was stopped at a red light at the time he began using the phone to check e-mail and he put the phone away when the light changed. He cited the state supreme court’s decision in Mercer v. Department of Motor Vehicles, 809 P.2d 404 (Cal. 1991), which said the crime of driving under the influence of alcohol or drugs requires proof of “volitional movement.”

The court of appeal was not convinced. In an opinion by Justice James R. Lambden, it distinguished Mercer on the ground that it involved an interpretation designed to encourage drunken drivers to pull over with the assurance they will not be punished if they stop driving and are found by police.

Adoption of the defendant’s narrow interpretation of “drive” in the cell phone provision would lead to “millions of people across our state repeatedly picking up their phones … whenever they are paused momentarily in traffic, their car in gear and held still only by their foot on the brake, however short the pause in the vehicle’s movement,” the court said. Not only would such driving pose the sort of hazard the law is designed to avoid, but it could also worsen traffic problems if drivers were slow to notice such things as the clearing of a traffic jam, it observed.

Justice James A. Richman, concurring, said the majority needlessly looked at the legislative history when all that matters is “to put it bluntly, that ‘driving’ includes ‘stopping.’ 11.29.2011