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]

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]

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]

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]

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]

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]

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.

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.

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.

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).

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]

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]

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 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?