C.A. 1st

The First Appellate District affirmed a judgment. The court held that a defendant who used his wireless telephone with his hands while he was momentarily stopped at a traffic signal was “driving” while he used the phone within the intended meaning of Vehicle Code §23123(a).

A traffic officer observed Carl Nelson using his wireless telephone with his hands as he paused his car at a red traffic light. The officer cited Nelson for infraction of Veh. Code §23123(a). Nelson contested the citation. At trial, Nelson testified that he had only been using the phone while he was stopped at the signal to check his e-mail.

Nelson contended that he was not “driving” as required by §23123(a) pursuant to Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753. The trial court found Nelson guilty. The appellate division of the trial court affirmed, but transferred certification to the appellate court to determine the question that Nelson raised.

The court of appeal affirmed, holding that Nelson was “driving” within the intended meaning of §23123(a).

In Mercer, the officers came upon the defendant as he slept in a parked car, and they cited him for driving while intoxicated. But (I) Mercer did not address the question presented here, namely, whether Nelson violated §23123(a) when he used his hands to listen to a wireless phone as he fleetingly paused at a red traffic light on a public roadway.

Mercer determined that “drive” in §23152 requires proof of volitional movement. Mercer narrowly construed “drive” for reasons that did not apply here. The court in this case did not use the analytical framework of Mercer. The court found that §23123(a) does not contain clear and unambiguous language that exempted Nelson from its ambit, despite its reference to “drive” and “while driving,” which latter term does not appear in §23152.

The court acknowledged that the §23123(a) terms “drive” and “while driving” are ambiguous as to a driver’s fleeting pauses as he drove on public roadways. However, the court continued, §23123(a) includes such stops because “drive” and “while driving” commonly refer to a person driving along the public roadways, regardless of whether he stops fleetingly for a red traffic light or other impediments to movement that are beyond his control.

Further, identical language in other Vehicle Code provisions that are aimed at reducing accidents from travel on public streets and highways, case-law discussion, and the reference in §23123 to “operation” in defining an exemption for emergency-vehicle operators, suggest that “drive” and “while driving” should be construed so as to apply §23123(a) to Nelson’s circumstances.

The court opined that its construction was consistent with the definition of “drive” in Mercer because there was proof of volitional movement, in that Nelson used his phone during a fleeting pause at a traffic light “while driving” on public roadways.

In addition, given the ambiguity of §23123(a), the court also examined its legislative history, which showed that the Legislature has distinguished between hands-free and hand-held use of wireless phones by persons driving and operating motor vehicles on public roadways. The Legislature saw benefits in the former, but enacted §23123 because of the safety implications of the widespread practice of using hand-held wireless phones while operating motor vehicles.

The findings and declarations of the Legislature, the interchangeable use of “drive” and “operate” in the legislative history, and other statements in that history indicated that the Legislature was generally concerned about the use of hand-held wireless phones in motor vehicles on public roadways and not just about such use when the vehicles were in motion. Thus, that history strongly supported that §23123 was intended to apply to Nelson’s circumstances.

Further, the court found that Nelson’s narrow volitional-movement interpretation of “drive” and “while driving” in §23123(a) would likely result in numerous significant public-safety hazards on public roadways. Were Nelson’s interpretation adopted, it would open the door to the picking-up of phones to place calls and check voice-mail while driving but paused momentarily in traffic, with a car in gear and only braked, however short that pause in movement. This could include fleeting pauses at traffic signals and signs in stop-and-go traffic as pedestrians crossed, as vehicles ahead navigated around double-parked vehicles, and many other circumstances.

Justice Richman concurred. He saw no need for a lengthy discussion of case law and legislative history, opining simply that §23123(a) applies to persons “driving” on public roadways who stop briefly while doing so, pursuant to the plain and common-sense meaning of that term. Moreover, he wrote, Mercer had no application here because Nelson was not parked, lawfully or otherwise.