This is the most important opinion in the history of California appellate jurisprudence.
Okay, so I exaggerate. But I bet you that for the majority of Californians, this opinion has greater practical significance than 99.999% of anything else they'll read in the pages of the California Appellate Reporter.
The critical issue is this: Can you use your cell phone at a red light?
The operative statute provides that you can't talk on a non-hands-free phone when you're "driving." Carl Nelson's sitting at a stop light, flips up his cell phone, and starts making a call. Not realizing that a motorcycle cop had pulled alongside him at the light, and so was sitting right outside his driver's side window. Once Carl saw the cop, he closed the phone and put it down. But the cop decided to give him a ticket anyway. (And I know what half of you are now saying to yourselves: "Jerk." Though some of you are saying that about the police officer, while others are saying that about Cell Phone Carl.)
But Carl says he shouldn't get a ticket, because the light had never turned green. So he wasn't talking on the phone while "driving," he says. And he cites a case from the California Supreme Court that reversed a drunk driving when a dude was found sleeping in his car, with the engine and lights on, that holds that (in that case) a conviction for "driving" while intoxicated requires proof of volitional movement. So Carl says he was not "driving" while on his cell phone because he wasn't moving. The Attorney General's Office, by contrast, says that the legislative history of the statute reflects that anyone should be punished who is "operating" a motor vehicle while using a cell phone, and that Carl's ticket should be affirmed on that basis.
First, the holding. Which you should definitely know. Carl loses. You can't use your cell phone at a stop light. End of story.
I think the Court of Appeal is correct in that regard. I think that Carl was "driving" even though he was at a stop light. That counts.
But I say that even though I'm a lot more conflicted in that regard than the Court of Appeal. And certainly more than the Attorney General's Office. Carl's best argument, in my view, is his argument that the use of a cell phone is a transient act -- even more transient than driving while intoxicated. You can use a cell phone at a stop light and not endanger anyone. It's fine. Perhaps even more persuasively, you can do lots of stuff at a red light. Pick your nose. Look in the glove compartment. Take off your shirt. Close your eyes and take a nap. Do even stupider stuff. Why would the Legislature allow you do do all these things -- things that are far more dangerous and distracting -- but not allow you to talk on a cell phone? Doesn't make sense.
I agree with that. At least in part. But I still don't think that necessarily means you get to talk on a cell phone at a red light. Because the Legislature doesn't have to make sense: it's rational basis review, after all. And I am pretty confident that the dangers of cell phones are more in the public consciousness than the dangers of nose picking. That they choose to legislate about the former and not the latter just makes them inconsistent, but that's not fatal to a statute. More importantly, I think the Legislature might well think that someone who starts talking on a cell phone at a red light might not always stop immediately once the light turns green. It's harder to stop talking than it is to stop searching the glove box. Because the former might be interpreted as rude. So the Legislature could well think -- as I do -- that it makes sense as a prophylactic matter to not allow talking on cell phones, even at red lights, because doing so would advance public safety even though talking at a red light by itself might not be such a bad thing.
That said, I'm not willing to buy the Attorney General's argument that the correct interpretation of the statute is that anyone who's operating a motor vehicle can't use their cell phone. I think that argument picks loose language from the legislative history to advance unjustified ends. And I'm more than a little bummed that the Court of Appeal didn't specifically reject this argument. Because you "operate" a motor vehicle in far more circumstances than just sitting at a red light. For example, imagine that you want to make a cell phone call, and thus pull over to a parking space on the side of the road and make your call (but stay behind the wheel and leave your engine running). Under the Attorney General's view, you're guilty of an infraction.
But I don't agree. Talking on your cell phone while outside of driving lanes seems perfectly fine to me. You're not "driving" at that point, even if you're "operating" your motor vehicle (as you clearly are). It's one thing to say that, at a stop light, you're still "driving" even if not moving. It's another thing to try to argue that even when you've pulled over, that cell phone's got to stay in your pocket. I'm not on board for that. And I wish the Court of Appeal had expressly said so as well. Particularly since the Attorney General's Office was advancing an interpretation of the statute that I don't find plausible, and that might in fact deter people (if not expressly rejected) from doing socially beneficial things like pulling over if they want to make a call.
So know what the lay of the land is here. And, at a minimum, get a hands-free device. Or just stay off the phone entirely while driving. Because even when you're not using your hands, the evidence about accident rates when you're talking on the phone while driving is shocking. Truly amazing stuff. It's like being drunk. Even hands-free. So don't do it.
But I know this last advice falls on deaf ears. Such is life. But at least my counsel about cell phones and red lights might be heeded. Do it only if you're hands-free. Otherwise Nelson's fate could well be yours.
