Enabling BlueTooth Feature by hand violation of 23123(a)? Contra Costa Appellate Div.

[Zigner]

Right, I touched/held the device to make contact, not to make or receive a call, which is exactly what is stated..."to initiate or end contact with the other party". Not that it matters, I could have touched to make contact, touched to receive, or touched to end and be protected under AB 1536/23123.5.

23123(a) only prohibits "talking and listening" while not in hands-free mode. it is perfectly legal to hold your phone and do all sorts of things while not in hands-free mode, you just can't "talk and listen".

I've enjoyed debating this with you folks, it's given me a better understanding of the law itself and its presentation. I'm out.

You weren't "making contact" - you had already established contact. You were simply trying to RE-ENABLE hands-free mode (which means that you were using your device for a conversation, while holding it, while it was not configured for hands-free operation.

You aren't going to win this one based on the law, but you might based on sympathy.

 

[PooperScooper]

Conversation is defined as "talking and listening" (P. v. Spriggs, 2014). The conversation ended when the bluetooth unpaired. Obviously, I couldn't "talk and listen" on the phone while it was stuffed in the console of my car. To reconnect with other party and start the conversation again, I needed a way to hear and speak to them. Putting it up to one's ear and mouth would be a violation of 23123(a). Picking up the phone and pressing the bluetooth button feature is not, and is an explicit right provided by AB 1536/23123.5. Conversation did not happen again until after pressing the bluetooth feature button to engage hands-free mode.

To reiterate, I could hold my phone while conversing via bluetooth (not that I did during the initial conversation), I could hold my phone while pressing a button to engage a bluetooth feature, and I could then continue to hold the phone after re-engaging in a bluetooth conversation. Legally.

I sure hope our justice system doesn't judge people based on luck and sympathy.

You weren't "making contact" - you had already established contact. You were simply trying to RE-ENABLE hands-free mode (which means that you were using your device for a conversation, while holding it, while it was not configured for hands-free operation.

You aren't going to win this one based on the law, but you might based on sympathy.

 

[Zigner]

I sure hope our justice system doesn't judge people based on luck and sympathy.

Me too - I hope that you don't win this based on your flawed interpretation of the law, nor based on sympathy.

 

[justalayman]

Conversation is defined as "talking and listening" (P. v. Spriggs, 2014). The conversation ended when the bluetooth unpaired. Obviously, I couldn't "talk and listen" on the phone while it was stuffed in the console of my car. To reconnect with other party and start the conversation again, I needed a way to hear and speak to them. Putting it up to one's ear and mouth would be a violation of 23123(a). Picking up the phone and pressing the bluetooth button feature is not, and is an explicit right provided by AB 1536/23123.5. Conversation did not happen again until after pressing the bluetooth feature button to engage hands-free mode.

To reiterate, I could hold my phone while conversing on bluetooth, I could hold my phone when pressing a button to engage a bluetooth feature, and I could then continue to hold the phone after re-engaging in a bluetooth conversation. Legally.

I sure hope our justice system doesn't judge people based on luck and sympathy.

but where does it say use of the phone (which is what is prohibited) is limited to talking and listening?

given the state you are talking about, I believe I would hope for luck and sympathy. The law involved, even with their attempt to clarify it, is still pretty screwed up.

 

[PooperScooper]

The Fifth District Appeals Court (I think I may have quoted 4th earlier by mistake), says that the 23123(a) only prohibits "listening and talking".

P. v. Spriggs, 2014:

"The appellate division [lower division appeals, which this case overturned] interpreted section 23123(a) as prohibiting all “hands-on use” of a wireless telephone based on its finding that the statute’s plain language showed the “primary evil” the Legislature sought to avoid was “the distraction the driver faces when using his or her hands to operate the phone[,]” and “if the Legislature had intended to limit the application of the statute to ‘conversing’ or ‘listening and talking,’ as [Spriggs] maintains, it could have done so.” (People v. Spriggs, supra, 215 Cal.App.4th at pp. Supp. 3-5.) While the statute certainly could have been written more clearly, we believe the inclusion of the phrase “hands-free listening and talking” does in fact limit the statute’s prohibition to engaging in a conversation while holding a wireless telephone.

lol, yeah, even the Appeals Court mentions it isn't very clear.

but where does it say use of the phone (which is what is prohibited) is limited to talking and listening?

given the state you are talking about, I believe I would hope for luck and sympathy. The law involved, even with their attempt to clarify it, is still pretty screwed up.

 

[justalayman]

The Fifth District Appeals Court (I think I may have quoted 4th earlier, by mistake), says that the 23123(a) only prohibits "listening and talking".
.

so you are saying I can hold my phone in my hand and I can scroll through my contacts looking for hot momma #32 and then open my dialing screen and peck away at the numbers and then before the call connects, activate my bluetooth capability and then continue to talk and listen on my phone and remain in compliance of the law?



So, in effect the only thing the law requires is you don't hold it up to your ear?

You really believe that was the intent of the appellate court?

but wait, this is what they said

we believe the inclusion of the phrase “hands-free listening and talking” does in fact limit the statute’s prohibition to engaging in a conversation while holding a wireless telephone.

so contrary to a claim you made not long ago, you could not continue to hold your phone while engaging in a conversation, even if using the bluetooth system.
at least there's that much; you can't hold it while engaging in conversation, but wait, what did you say about your situation:

d start the conversation again, I needed a way to hear and speak to them. Putting it up to one's ear and mouth would be a violation of 23123(a). Picking up the phone and pressing the bluetooth button feature is not, and is an explicit right provided by AB 1536/23123.5. Conversation did not happen again until after pressing the bluetooth feature button to engage hands-free mode

Oh, I see your problem: you are misinterpreting the term "conversation" and confusing it with listening and talking. Using your definition, one could legally pick up their phone as long as one party or the other was not actively speaking. Well, when I have an hour long conversation with my wife, I can assure you there are not a full 60 minutes of active speech. I believe you are trying to stretch their statement to cover what you need it to to escape this ticket when in fact the court intended to consider the more liberal use of the term "conversation".

 

[Zigner]

I suspect that, when the bluetooth cut out, the OP made sure to pick up the phone and inform the caller that he had to reactivate the bluetooth...

 

[PooperScooper]

Yes and no (depending on literal interpretation). According to 23123(a), yes, you can scroll through contacts looking for Hot Momma #32 (not that I morally condone scrolling and searching while driving, nor infidelity), peck at numbers, and activate a bluetooth feature.

If analyzing your question literally, someone would be "talking and listening" with their phone even though the bluetooth were on. If functionally possible, I would imagine that would be a violation.

23123(a) only prohibits "listening and talking" while not in hands-free mode. Yeah, don't stick your phone to your ear and have a conversation. If that wasn't legislative intent, they could have made it much clearer. In fact, additional laws reinforce this view. I didn't write them, I just try my best to follow them. Personally, I think they could have been much more strict for safety reasons. I wouldn't outlaw all phone touching while driving, however.

I said, "I could then continue to hold the phone after re-engaging in a bluetooth conversation. Legally." Where did I say otherwise?

I'm trying to enforce my right under AB 1536(miller). You bring up a good point about the definition of conversation, however. For instance, one could argue that they did not engage in a conversation at all, that they merely let their wife rant on and on without responding. If a conversation is defined as "listening AND talking", this may not violate the law, though you are probably correct in regards to their liberal interpretation. In regards to delineation of periods within a conversation, it's hard to define a line. I reason that a physical/electronic disconnect, such as a bluetooth disconnect, is probably the best definition rather than latency.

In another instance, suppose a landline conversation was intermittently disconnected because the cord was cut, but the conversation continued upon reconnect. Is this the same conversation or a new one? It doesn't really matter. What matters is that a person must connect to the other party again by means of physically touching the phone, which is legal, and the method of communication while connected (hands-free communication only).

You would be remiss in thinking that all the time and effort I've put in is merely to get out of a cell phone ticket that I've already paid for an that puts no points on my license.

so you are saying I can hold my phone in my hand and I can scroll through my contacts looking for hot momma #32 and then open my dialing screen and peck away at the numbers and then before the call connects, activate my bluetooth capability and then continue to talk and listen on my phone and remain in compliance of the law?
So, in effect the only thing the law requires is you don't hold it up to your ear?

You really believe that was the intent of the appellate court?

but wait, this is what they said

so contrary to a claim you made not long ago, you could not continue to hold your phone while engaging in a conversation, even if using the bluetooth system.
at least there's that much; you can't hold it while engaging in conversation, but wait, what did you say about your situation:






Oh, I see your problem: you are misinterpreting the term "conversation" and confusing it with listening and talking. Using your definition, one could legally pick up their phone as long as one party or the other was not actively speaking. Well, when I have an hour long conversation with my wife, I can assure you there are not a full 60 minutes of active speech. I believe you are trying to stretch their statement to cover what you need it to to escape this ticket when in fact the court intended to consider the more liberal use of the term "conversation".