Traffic ticket question

[FalconLair]

My sister was pulled over by CHP yesterday for the reason of having her cell phone in her hand

In actuality the cell phone was in her hands free cell phone holder and she had the cell phone case in her hand - she showed it to the officer in the hands free holder and the case, but the officer told her that his "partner" saw a cell phone in her hand

The "partner" remained in the vehicle and wasn't wearing a CHP uniform, my sister said he pulled his visor down but she said he had a normal white shirt on, definitely not a uniform

Anyway, the officer said he's giving her a ticket regardless - she's gonna contest it now, even though it's only a $20 ticket - she's adamant that it wasn't her cell phone

Her windows are factory tinted and I guess it's possible the officer is mistaken but my issue is the officer didn't say he observed it in her hand, he said his "partner" in the car observed it

The same "partner" who wasn't in uniform and pulled down his visor, there is nothing to even indicate the guy was an officer at all

Seems odd to me that the officer who didn't observe anything writes the ticket on the word of an unidentified person in his vehicle

My sister is going to request through the FOIA all bodycam footage of the stop and the audio which will show the CHP officer says he's acting on what this 3rd party passenger said he observed and she wants to subpoena the passenger, whomever it was

I know, a lot over so little, but that's my sister, she'd fight it even if it was $5 if she feels she's right

I told her might as well get the dashcam footage too but I'm not sure how she'd go about finding out who his passenger/partner in the vehicle was

She wants to fight it and I don't blame her - I'm not even sure how the officer could sign on the ticket over something he didn't see - guess we'll find out

Am I missing something or does this seem perfectly in order?

[Calisnaps]

The Passenger may be a plain clothes officer, CHP around here has quite a few that normally are used in vehicle theft undercover work. Either way I'm not sure I'd risk court costs to fight a $20 ticket where the dash cam may well show a cellphone case in her hand, it's her word vs the camera that it is an empty case.

[NorCalBusa]

The officer that observed the violation needs to sign the ticket. I'd start there.

[FalconLair]

Originally Posted by Calisnaps

The Passenger may be a plain clothes officer, CHP around here has quite a few that normally are used in vehicle theft undercover work. Either way I'm not sure I'd risk court costs to fight a $20 ticket where the dash cam may well show a cellphone case in her hand, it's her word vs the camera that it is an empty case.

She doesn't care about the money, when my mom passed away we all inherited millions from her estate and all she does now is travel around the country and enjoy it - I had to talk her out of hiring a lawyer to represent her

She also wants to get her cellphone records to show she wasn't on the phone at the time of the stop or beforehand - I think that alone could suffice her not being on the phone but I don't know exactly what CA law is either

[Oneaudiopro]

Originally Posted by NorCalBusa

The officer that observed the violation needs to sign the ticket. I'd start there.

It's no different than a radar trap where the officer operating the radar gun radios down the road where other units are waiting, and pull over the suspected speeder and write them a ticket. And literally, for $20, I think your sister has too much spare time on her hands. smh

[NorCalBusa]

Originally Posted by Oneaudiopro

It's no different than a radar trap where the officer operating the radar gun radios down the road where other units are waiting, and pull over the suspected speeder and write them a ticket. And literally, for $20, I think your sister has too much spare time on her hands. smh

I didn't suggest it was. In your example there too must have both Officer's names- there's even a place on the citation just for that. Same spot the speed aircraft Officer's names go.

[edgerly779]

Min ticket in ca for illegal electronic device is not 20 bucks. I have had 2 150 and 300 each. lapd. Just pay it if 20 bucks does not put points on your record. Idiot to fight for 20 bucks.

[FalconLair]

Originally Posted by edgerly779

Min ticket in ca for illegal electronic device is not 20 bucks. I have had 2 150 and 300 each. lapd. Just pay it if 20 bucks does not put points on your record. Idiot to fight for 20 bucks.

Her citation is not up online yet, but she told me the CHP officer told her it was $20, probably some kind of court fee too - she's more worried about it being on her driving record than the cost

[pacrat]

Originally Posted by edgerly779

Min ticket in ca for illegal electronic device is not 20 bucks. I have had 2 150 and 300 each. lapd. Just pay it if 20 bucks does not put points on your record. Idiot to fight for 20 bucks.

Calling someone an [idiot] is rather harsh IMO. Simply for not being willing to put a monetary value on their principals.

A false accusation, is a false accusation. Whether the person making it believes it to be true or not.

As US citizens, we are guaranteed our day in court, should we decide to exercise that right.

OP, I applaud your sister for refusing to cave.

[GizmoSD]

Who takes their phone out of the case and holds the case in their hand while driving?

What vehicle code was your sister cited for?

[RickD427]

Originally Posted by FalconLair

In actuality the cell phone was in her hands free cell phone holder and she had the cell phone case in her hand - she showed it to the officer in the hands free holder and the case, but the officer told her that his "partner" saw a cell phone in her hand

Make sure that your sister checks the elements of the offense(s) that she is charged with. From what you describe, it sounds like she was cited for 23123 or 23123.5 CVC. If the citation is for 23123, the officer must show that the device was being "used" at the time of the offense. If the citation was for 23123.5, the offense is complete if the person was "holding and operating" the device.

Originally Posted by FalconLair

Anyway, the officer said he's giving her a ticket regardless - she's gonna contest it now, even though it's only a $20 ticket - she's adamant that it wasn't her cell phone

Keep in mind that the $20.00 is only the fine. Don't forget to add in the Penalty Assessment and Court Fees. One of my most memorable court experiences was listening to a court clerk explain to a very irate gentleman why he had to fork over $233 to pay a $100 fine.

Also don't forget the violation points that go against the driver's license.

Originally Posted by FalconLair

My sister is going to request through the FOIA all bodycam footage of the stop and the audio which will show the CHP officer says he's acting on what this 3rd party passenger said he observed and she wants to subpoena the passenger, whomever it was

Forget about the FOIA. It doesn't apply to the CHP. You can also forget about California's Public Records Act, it contains exemptions for law enforcement records such as the ones your sister would be seeking. The appropriate method to seek the information is through criminal discovery. Those requests go to the prosecuting agency.

Originally Posted by NorCalBusa

The officer that observed the violation needs to sign the ticket. I'd start there.

Not true. The legal requirement is that the offenses cited for occurred in the officer's presence. We commonly use the language that an officer must witness a violation in order to arrest for an infraction or misdemeanor (with some exceptions), but the provision in statute is that the offense occur in the officer's presence. Please refer to Penal Code section 836(a)(1).

Originally Posted by FalconLair

She also wants to get her cellphone records to show she wasn't on the phone at the time of the stop or beforehand - I think that alone could suffice her not being on the phone but I don't know exactly what CA law is either

That would be a very good first step. Stand by for some semantic argument in court. The cell phones records could be used to show that no telephone call, or text message, had been completed. The nice officer is still free to argue that the device was being used, or operated, prior to a call, or text, being completed (and therefore recorded in the cell phone records). The nice judge gets to decide which argument to go by.

[jarhead714]

Originally Posted by edgerly779

Min ticket in ca for illegal electronic device is not 20 bucks. I have had 2 150 and 300 each. lapd. Just pay it if 20 bucks does not put points on your record. Idiot to fight for 20 bucks.

She has nothing but time and OP’s money.

[hermosabeach]

Does using a phone have a definition?
Playing solitaire / game
Adjusting volume for audiobook?
Reading a text that came in 10 min earlier?

Does the law have a specific definition of in use?

The code says use

A person shall not drive a motor vehicle while using a wireless telephone unless that telephone is specifically designed and configured to allow hands-free listening and talking, and is used in that manner while driving


So cell phone records would not show one was not using phone if a call was not active as you could be reading the Bible app while driving.

[RickD427]

Originally Posted by hermosabeach

Does using a phone have a definition?
Playing solitaire / game
Adjusting volume for audiobook?
Reading a text that came in 10 min earlier?

Does the law have a specific definition of in use?

The code says use

A person shall not drive a motor vehicle while using a wireless telephone unless that telephone is specifically designed and configured to allow hands-free listening and talking, and is used in that manner while driving


So cell phone records would not show one was not using phone if a call was not active as you could be reading the Bible app while driving.

That's where the semantics come in. The nice CHP officer could easily argue that holding the phone and keying in a telephone number is "using" the cell phone. Those actions would not show up on the cell phone records until the resulting signal was actually transmitted to a cell reception tower.

[NorCalBusa]

Originally Posted by RickD427

Originally Posted by NorCalBusa View Post
The officer that observed the violation needs to sign the ticket. I'd start there.
Not true. The legal requirement is that the offenses cited for occurred in the officer's presence. We commonly use the language that an officer must witness a violation in order to arrest for an infraction or misdemeanor (with some exceptions), but the provision in statute is that the offense occur in the officer's presence. Please refer to Penal Code section 836(a)(1).

That seems a distinction without a difference Rick?

[RickD427]

Originally Posted by NorCalBusa

That seems a distinction without a difference Rick?

But there is a difference, and a very significant one to this case, as the OP explained.

According to what the OP related, as he understood the events from his sister, the following occurred:

1) The nice officer's partner observed the sister holing was was understood to be a cell phone.

2) The context of the statement is that the arresting officer did not personally observe the violation.

3) The arresting officer was in the same vehicle as was the passenger officer, and therefore would necessarily be "in the presence."

If we apply the standard that the arresting officer must "observe" the violation, the sister could not lawfully had been arrested.

If we apply the "occurred in the presence", then the sister may have been lawfully arrested.

[NorCalBusa]

Originally Posted by RickD427

But there is a difference, and a very significant one to this case, as the OP explained.

According to what the OP related, as he understood the events from his sister, the following occurred:

1) The nice officer's partner observed the sister holing was was understood to be a cell phone.

2) The context of the statement is that the arresting officer did not personally observe the violation.

3) The arresting officer was in the same vehicle as was the passenger officer, and therefore would necessarily be "in the presence."

If we apply the standard that the arresting officer must "observe" the violation, the sister could not lawfully had been arrested.

If we apply the "occurred in the presence", then the sister may have been lawfully arrested.

I felt/feel the same way as those conclusions.

Perhaps I didn't state very well the second space on citations for a second officer. I used aircraft traffic enforcement as an example, someone else mentioned wolf-pack traffic enforcement as well. Ok, no worries.

[TrailerparkTrash]

Originally Posted by NorCalBusa

The officer that observed the violation needs to sign the ticket. I'd start there.

Not exactly. The issuing officer signs, but there is a space for the “arresting” (or witnessing) officer to have his name written on the cite as well. It’s done frequently. For instance when a detective asks a uniformed officer to stop a vehicle and issue a cite. That detective is now the “arresting” officer (yes I know, even though the driver is not arrested, it?s just a play on words), while the uniformed officer is the “issuing” agent of the actual citation.

Or when an air support officer requests a marked patrol car to conduct a stop and issue a cite to a vehicle that was witnessed from the air to have run ran a red light or stop sign. The “issuing” officer will conduct the stop and write in the name and ID of the air crew who is requesting that a motorist be issued a citation. Again, that stuff is done all the time and it does NOT require a personal signature of both officers on the cite. It only requires that the issuing officer personally write in the name and ID of the arresting (witnessing) officer. In both cases, the witnessing officer will be the one that gets subpoenaed to testify as to why he had the motorist cited in the first place. Hope that makes sense.

What I find difficult in the OP’s case however, is that if that was a CHP “detective” as someone else suggested, I find it very troubling to know that he never exited the patrol car, while the uniformed officer did. That pretty much is NEVER going to happen. An armed plain cloths detective isn?t going to merely sit idle inside a patrol car, while his uniformed partner exits and makes contact with the car they just pulled over. It just doesn?t happen like that with any agency and for officer safety issues. Both exit the patrol car. How they make an approach on the vehicle afterward varies by individual and department policies.

My guess, it was a civilian ride-a-long. A non-sworn occupant of some sort that was told to stay in the patrol car. Easy to beat in court.

[FalconLair]

Originally Posted by GizmoSD

Who takes their phone out of the case and holds the case in their hand while driving?

What vehicle code was your sister cited for?

23123 is what's on the ticket

and she said she didn't even realize she still had the case holder in her hand - she's 72, i don't know

she also said she'd barely started driving down the road when he pulled her over and the cellphone was put on the holder before she pulled out of the garage

she's still really butthurt about it today too - this morning i had to talk her out of driving down to the CHP and filing a complaint against the officer for "lying on her" - she's just not gonna let it go and if she's telling the truth then i don't blame her either

[GizmoSD]

If she didn?t realize she was still holding an empty phone case in her hand while driving, might be time for a license re-evaluation instead of a ticket. You kinda need two hands to drive correctly.

She should be careful what she writes down or says in court, seems like there?s a possibility she could admit a different/worse offense in an attempt to defend herself. Seen that happen plenty of times.

What?s a safe speed for someone not-focused enough to realize they?re still holding an empty (doubt it, but I?ll play along) phone case instead of the steering wheel?

I suspect there?s more to the story, but good luck to your sister.

[TrailerparkTrash]

Originally Posted by FalconLair

23123
she's still really butthurt about it today too - this morning i had to talk her out of driving down to the CHP and filing a complaint against the officer for lying on her - she's just not gonna let it go and if she's telling the truth then i don't blame her either

I think you really need to talk your sister off the ledge. “Principle” goes out the window if she looks around at other people with genuine problems. Tell her to look around everyday and see others with worse things happening to them like serious declining health issues, sudden loss of loved ones and/or serious injuries that cripple and change lives forever. Maybe she?ll come to her senses and realize for $20 bucks, she truly has no problems in life to continue complaining about. I get it, it sucks she got cited, but time to move on over $20. She has no problems.

[Djantlive]

The only defense is if she is able to proof the passenger isn’t LE. The citation can be issued even if the officer didn’t see the crime as long as another officer did. The typical speed trap works that way.

[RickD427]

Originally Posted by Djantlive

The only defense is if she is able to proof the passenger isn?t LE. The citation can be issued even if the officer didn?t see the crime as long as another officer did. The typical speed trap works that way.

There is no requirement for the CHP passenger to be a LEO. A civilian can provide the necesssary testimony to show the elements of the offense.

[FalconLair]

Originally Posted by RickD427

There is no requirement for the CHP passenger to be a LEO. A civilian can provide the necesssary testimony to show the elements of the offense.

Testimony as in showing up in court too and being put under oath or just stating what they feel they witnessed to an officer on patrol?

So if I stopped the first officer I seen on the street and told him i witnessed my next door neighbor run a red light earlier in the afternoon and if the officer thought I was telling him the truth then he could proceed to write a traffic ticket to my neighbor?

[RickD427]

Originally Posted by FalconLair

Testimony as in showing up in court too and being put under oath or just stating what they feel they witnessed to an officer on patrol?

So if I stopped the first officer I seen on the street and told him i witnessed my next door neighbor run a red light earlier in the afternoon and if the officer thought I was telling him the truth then he could proceed to write a traffic ticket to my neighbor?

Yes, under the circumstances described here, the passenger would need to personally testify. The driver officer was not percipient to the violation and he/she/it/other cannot relate the statements made by the passenger for the purpose of asserting the truth of those statements. That's hearsay 101.

No, if you stopped an officer, and reported a traffic violation to him/her/it/other, that officer could not issue a citation unless the offense occurred in his/her/it/other's presence. Its the "in the presence" issue that makes this situation unique.

[hermosabeach]

To be fair, the out the door cost will be under $200 with court fees and such, not $20


If sis wants to play the game, no lo press has books on fighting tickets.
She can learn how to make the formal requests for both body cams, dash cams and any notes the officer has from the ticket.


You can write a letter longhand, but not hold a cell.


There is a reason why you hear honking at 80% of lights turning green. People are on their cell phones.

It's a valid problem.

[yardsale]

Could have said ??My partner saw it too?. And she didn?t hear the too. A lot is going on when you get stopped.

[yardsale]

Sorry for the punctuation errors don?t know what happened.

[pacrat]

Originally Posted by hermosabeach

To be fair, the out the door cost will be under $200 with court fees and such, not $20


If sis wants to play the game, no lo press has books on fighting tickets.
She can learn how to make the formal requests for both body cams, dash cams and any notes the officer has from the ticket.


You can write a letter longhand, but not hold a cell.


There is a reason why you hear honking at 80% of lights turning green. People are on their cell phones.

It's a valid problem.

Not anymore. IIRC back in 2017 maybe 19. Distracted driving laws were greatly expanded. No writing, no reading, no eating or even drinking if from a large container that requires impaired vision.

[SVT-40]

Originally Posted by pacrat

Not anymore. IIRC back in 2017 maybe 19. Distracted driving laws were greatly expanded. No writing, no reading, no eating or even drinking if from a large container that requires impaired vision.

What specific vehicle code section(s)are you referring to?

[pacrat]

Originally Posted by SVT-40

What specific vehicle code section(s)are you referring to?

CaVC 23103(A)


https://www.laweekly.com/chp-to-crac...st-cellphones/

Simply eating, reading, etc. is not by statute illegal. I misspoke regarding the "law change".

CHP and many other agencies have made policy changes to increase enforcement of 23103a, in cases where the officer deems that the operator is doing so recklessly, while being distracted by those activities.

As always Sec 4 CPC applies.

[FalconLair]

well, she's calmed down a bit - still saying she's gonna fight it

[geedavell]

Originally Posted by FalconLair

She doesn't care about the money, when my mom passed away we all inherited millions from her estate and all she does now is travel around the country and enjoy it -

Is she single?????

[Ca2AZ]

At the end of the day, regardless of semantics, she only has to convince the judge she was in the right. The costs are the same if she eats the ticket, or fights and loses. But in traffic court the judge (referee in my jurisdiction), is willing to listen and take into account what she has to say.

I fought a ticket once and told the judge, "I was speeding, but not as fast as on the ticket." And she split the difference, which saved me hundreds of dollars and allowed me to go to traffic school.

[Spanky8601]

Have her spend some time in the actual traffic court. A few hours spent watching the Judge dispense justice rapid fire might allow her to rethink her fight for justice.

[blackberg]

Could she did a trial by declaration?

[FalconLair]

Originally Posted by blackberg

Could she did a trial by declaration?

i mentioned that, she refused and said she wants to tell the judge the truth

tried to explain to her that the truth doesn't always win in court, especially when it comes down to her word against an officer that is a revenue instrument

[GizmoSD]

Pacrat, please elaborate on ?CHP and many other agencies have made policy changes to increase enforcement of 23103a, in cases where the officer deems that the operator is doing so recklessly, while being distracted by those activities.?

The group would benefit from your training and experience, as well as specific knowledge on the topic.

Also, 23103(a) isn?t the code used. I know you alluded that from comparing language in the random article you found to language in the vehicle code, but alas?swing and a miss.

Is that the code you use when you cite someone for drinking a double big gulp while driving?

[blackberg]

Originally Posted by FalconLair

i mentioned that, she refused and said she wants to tell the judge the truth

tried to explain to her that the truth doesn't always win in court, especially when it comes down to her word against an officer that is a revenue instrument

On a trial by declaration, you write down your truth, and the cop
Should do his, and a judge reads it and gives a decision.

If you lose, you get to ask for a new trial and be in front of a judge.

In her case , she may have the chance to give her whole
Story in a writing, while in front of the judge the judge may cut her off .

The one time I got a ticket I used TBD and actually won my case, the letter I got back said it was decided in my favor. It was a BS case that a car looked fast , but had 2 gears broken and couldn?t get past 35 on the street, took forever to get to 50, had to shift from 2nd to 4th st less than 2000 rpm.

-bb

[jorgi23]

Falcon,

You sister is 100% correct!!

Pay the fine for her and tell her they dropped the case.

End IT, before it starts

also buy her a phone holder that works with her case, so she doesn't have to
remove the phone from the case to use her holder.

this may be a silly question? why are you holding a case with no phone while driving?? honestly I don't really care, just pay it and never talk about it again!