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Name: People v. Nelson
Case #: A131301
Court: CA Court of Appeal
District 1 DCA
Division: 2
Opinion Date: 11/14/2011

A driver who pauses momentarily at a red light is “driving” within the meaning of Vehicle Code section 23123 and is prohibited from using his cellphone unless it is used in a hands-free mode. Mr. Nelson opened his flip-type cellphone, dialed a number, and put the phone to his ear while at a red traffic light. He closed the phone when an officer pulled up next to him. When the light turned green he moved forward through the intersection, he was then stopped and cited for the infraction. He protested that he only used the phone as he waited for the light to turn green. The appellate division of the superior court affirmed the conviction, but certified the case to the appellate court on the question of whether the term “driving” as used in section 23123 requires contemporaneous volitional movement of the motor vehicle as an element of the cell phone offense. The Vehicle Code does not define “driving” or “while driving.” Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753 construed the term “drive” narrowly in the context of the drunk driving statute when a driver was found sleeping behind the wheel of a legally parked car with its engine running. Mercer did not answer the question raised by the instant circumstances. The term “while driving” in the Vehicle Code does not exclude a driver fleetingly paused at a traffic light. In light of the Legislative history, the consequences of the differing interpretations, reason, practicality, and common sense, the pause at a traffic light is done while driving.