Can you use your cellphone while you’re stopped at a red light? After all, you’re not actually “driving,” right?
A Richmond man took that argument to the 1st District Court of Appeal in San Francisco and lost.
Carl Nelson appealed his traffic court conviction in Contra Costa County, saying that he used his phone while he was stopped at the red light in December 2009 and that “driving” requires movement, according to court records. He was ticketed after a motorcycle officer pulled up next to Nelson’s car in Richmond and saw him dial and put the phone to his ear. When Nelson saw the officer, he closed the phone. Despite his protests after being pulled over that he wasn’t actually driving, Nelson got a ticket for $103.
His lawyer argued that a California Supreme Court ruling in 1991 defined driving as requiring proof of “volitional movement.”
But the appeals court noted that the 1991 case involved “a person found asleep in a vehicle legally parked against the curb of a residential street, albeit with its engine running and lights on; in other words, the vehicle was not at the time being driven on public roadways.”
As a result, the appeals court declared Monday, the state law banning handheld phones while driving applies “to persons driving on our roadways who, like defendant, may pause momentarily while doing so in order to comply with the rules of the road.”
And the ruling, written by Judge James Lambden, noted “there was proof of volitional movement of defendant’s motor vehicle since defendant moved it immediately before and after his fleeting pause at the red traffic light.”
In a concurring opinion, Judge James Richman noted: “Any mom or dad driving kids to school can expect to stop while parents in cars in front of them are unloading their kids. A shopper driving to a store near Lake Merritt in Oakland may have to stop while a gaggle of geese crosses the street. A couple going for a Sunday drive in West Marin County may have to stop for a cattle crossing. And, of course, all of us are expected to stop for red lights, stop signs, crossing trains, and funeral processions. In short, all drivers may, and sometimes must, stop. But they do so while ‘driving.’ Just like defendant.”
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