Fighting your Driving While Texting Ticket in Traffic Court (VC 23123.5)
Step 1: Know What the Law Prohibits.Section 23123.5 of the California Vehicle Code is in control here. Subsection (b) prohibits "using an electronic wireless communications device to manually communicate with any person using a text-based communication, including, but not limited to, communications referred to as a text message, instant message, or electronic mail." Note this is a very specific set of activities.
Step 2: Know what the Law Does Not ProhibitSection 23123.5 has a huge exception. It states:
"a person shall NOT be deemed to be writing, reading, or sending a text-based communication if the person reads, selects, or enters a telephone number or name in an electronic wireless communications device for the purpose of making or receiving a telephone call or if a person otherwise activates or deactivates a feature or function on an electronic wireless communications device."
Look up section 23123.5 on the internet. Print a copy and bring it to court with you for reference.
Step 3: Prepare for Hearing.If you are factually innocent (meaning you were NOT texting while driving), get your hands on your cell phone bill for the time and date of the ticket. Bring the original and two copies (or print three from the internet). Check to be sure your bill includes your text message activity. If it does not, download your text message activity from the internet. Bring three copies to court.
Step 4: Listen Carefully to the State's WitnessIt is likely the state will call only the police officer who wrote the ticket. If that officer does not show up, ask the Court to dismiss the case.
The current policy in California is "phone in one hand, ticket in the other." It is very likely the police officer will testify that he or she saw you with your phone in your hand, and issued you a citation. Make sure he or she testifies to this.
Step 5: Cross-Examine the Police Officer.When it is your turn to ask questions, make sure you nail down these topics:
1. Where was the police officer when he saw you?
2. What did (s)he see you doing with your cell phone?
3. Did (s)he see you sending a text message?
4. Did (s)he see you sending an email?
5. Did (s)he see you sending an instant message?
6. Does the officer know for certain that you weren't just activating or deactivating a feature or function on your phone?
Step 6: Ask for a "Nonsuit"If the police officer testified that (s)he issued you the ticket simply because you had your phone in your hand, and if the officer cannot give specific and uncategorical answers to your questions in Step 4, above, ask the court to dismiss the case or for a "nonsuit." This means you are asking the court to toss out the case because the state was unable to prove your case "beyond a reasonable doubt."
Step 7: If necessary, put on your defense case.Your defense will be that you were merely operating a function that was not a text message or email. Tell the judge what you were doing on your phone that WAS NOT sending a text, instant message, or email. If you have your cell phone records, AND they show you were not texting while driving, provide a copy to the prosecuting attorney, a copy to the judge, and keep a copy for yourself. Walk the judge and the prosecutor through the bill, showing that no texts were sent or received at the time (preferably for 10 or more minutes before and after) the ticket was issued.
Step 8: Ask the court to find you not guilty.This is pretty simple. After you are done testifying and putting on your case, read through the exception (Step 2, above), explain how your use of your cell phone fits into the exception, and ask the court to find you not guilty.