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Sanford Horowitz: Not Only Is Driving While Holding a Cell Phone Illegal, You Risk ‘Probable Cause’

Vehicle Code 23123.5 — No driving while holding your cell phone!

Imagine that you are stopped by a police officer, and you ask, “What seems to be the problem, officer?” And, you’re told, “Well, you were driving with your phone in your hand ...”

Wait a minute. I know it’s against the law to “text and drive.” But driving while holding my phone? Can they do this? Yes.

VC section 23123 was amended by the Legislature as of Jan. 1 to prohibit driving while holding an electronic device. Before the amendment, the statute made it an infraction to drive a motor vehicle while texting with an electronic wireless communications device.

Now, VC 23123.5(a) reads like this: “A person shall not drive a motor vehicle while holding and operating a handheld wireless telephone or an electronic wireless communications device unless the wireless telephone or electronic wireless communications device is specifically designated and configured to allow voice-operated and hands-free operation, and it is used in that manner while driving.”

So, a peace officer is permitted to make a traffic stop for persons holding cell phones while driving.

Why is that important? Isn’t just an infraction, meaning a fine? It’s important because it gives a law enforcement officer a sufficient legal basis to pull you over and meet you face to face. Suppose a police report read like this:

“I observed Mr. Smith driving a motor vehicle while holding his cell phone in violation of VC 23123.5(a). When I contacted him at the driver’s side window, I immediately detected the odor of an alcoholic beverage on his breath. His eyes appeared red and watery, and I noticed a slur to his speech. I asked him to step out of the vehicle so I could conduct a DUI investigation ...”

Get the idea? Once an officer has a legal basis to contact you, anything else they observe, if supported by the law, is fair game. That’s why VC 23123.5 is called a probable cause statute, and it can lead to more serious consequences.

How do I comply with this new statute? Mount your phone somewhere in the car where your hand can operate it with a single swipe or tap of the finger. And no texting!

Be careful out there. VC 23123.5(a) prohibits driving your vehicle while holding your cell phone. It’s a violation of the vehicle code, and can justify a traffic stop by a police officer.

Sanford Horowitz is a partner with Horowitz Law in Santa Barbara. The opinions expressed are his own. This article is not intended to provide legal advice. For legal advice on any of the information in this post, click here for the form or phone number on the Horowitz Law contact us page.

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