Handheld Use of a Cell Phone to Obtain Directions Violates California Vehicle Code Section 23123

by: Michael Pott and Charles Caraway

By now, most everyone is aware that it is illegal to drive while talking on a cell phone unless the phone is configured to allow hands-free use and is used in that manner.  This is set forth in California Vehicle Code section 23123.  However, cell phones today are capable of far more than simply talking.  A cell phone can be used to find restaurants, play games, watch videos, surf the internet, and provide driving directions.  Until recently, a grey area existed as to what types of actions violate Vehicle Code section 23123.  The recent decision in People v. Spriggs takes some of the mystery out of this as the Court held that any hands-on use of a cell phone while driving violates Vehicle Code section 23123.

People v. Spriggs
Steven Spriggs was cited and convicted for looking at a map on his cell phone while holding the phone in his hand. Spriggs appealed the conviction, however, he did not dispute the facts.   On appeal, Spriggs argued a later enacted statute (Vehicle Code section 23123.5), which prohibits driving while using an electronic wireless communications device to “dictate, send, or listen to a text-based communication” unless the device is used in a hands-free manner, supports the conclusion Vehicle Code section 23123 was only designed to address listening or talking on a cell phone while driving.  The court disagreed, stating the legislative history focused on the distraction a driver faces when using his or her hands to operate the phone.  Such a distraction exists whether the phone is used for carrying on a conversation or holding the phone while looking at a map.

Although the appellate decision just came out last month, there is already a mild grumble for legislative clarification – i.e. a request for a statute that makes the use of cell phones for purposes other than talking and texting expressly legal or illegal. For now, however, the Courts are interpreting the Vehicle Code to prohibit the hand-held use of cell phones while driving.

Take Away Tips
In addition to possibly receiving a ticket for holding a cell phone while driving, how might this decision affect civil litigation?  In a lawsuit regarding a motor vehicle accident, in order to prove liability, the trier of fact, or jury, must first find that there is a duty owed by the defendant to drive as a reasonable person. Then, in order to award damages to a plaintiff, the jury must find that the defendant was not driving in a reasonable manner at the time of the accident.  However, when the plaintiff can show a law was broken by the defendant, such as driving while holding a cell phone, then they may bypass the ordinary rules and request that the trial judge issue an instruction to the jury indicating there is a presumption of negligence in the case (otherwise known as negligence per se). This presumption makes it much easier to prove liability.  Accordingly, if a driver is involved in a traffic accident while holding his or her phone, it may result in a per se finding of negligence.

Be careful how you use your phone while driving a vehicle, and stay informed as to changes in the law so you know the impact your use of a phone while driving might have on you if you are involved in an accident.