People v. Nelson

200 Cal. App. 4th 1083 (2011)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

A police officer pulled up on his motorcycle directly by d’s driver’s side door while d’s car was stopped at a red traffic light. The officer saw d sitting in the driver’s seat with a flip-type cell phone in the process of dialing the phone and placing it to his ear. D looked at the officer, removed the phone from his ear, and closed it. After the traffic light turned green and d drove his vehicle through the intersection, the officer stopped him and advised him he had been on his phone in violation of the law. D objected that he only used his phone while stopped at the light and not while driving, but the officer cited him nonetheless. D testified that he was checking his e-mail and pushing some buttons on his phone, which was in his hand, as he waited for the traffic light to turn green, his car in gear. D argued that he was not “driving” his vehicle when he used his wireless telephone. D cited Mercer v. Dept. of Motor Vehs., 809 P.2d 404 (1991), which held that the California drunk-driving law applies only to vehicles that are in motion. D was found guilty of violating section 23123 and ordered to pay a fine and other penalties, totaling $103. The appellate division affirmed his conviction. It subsequently granted his request for transfer certification to this court 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.” D appealed.