A traffic officer observed Carl Nelson using his wireless telephone with his hands as he paused his car at a red traffic light. The officer cited Mr. Nelson for infraction of Veh. Code §23123(a). Mr. Nelson contested the citation on the basis that he had only been using the phone while he was stopped at the signal to check his e-mail. Mr. Nelson contended that he was not “driving” as required by §23123(a) pursuant to Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753. The trial court found Mr. Nelson guilty.

The court of appeal affirmed, holding that Mr. Nelson was “driving” within the intended meaning of §23123(a).

The court acknowledged that the §23123(a) terms “drive” and “while driving” are ambiguous as to a driver’s fleeting pauses as he drove on public roadways. However, the court continued, §23123(a) includes such stops because “drive” and “while driving” commonly refer to a person driving along the public roadways, regardless of whether he stops fleetingly for a red traffic light or other impediments to movement that are beyond his control.

Further, the court found that Mr. Nelson’s narrow volitional-movement interpretation of “drive” and “while driving” in §23123(a) would likely result in numerous significant public-safety hazards on public roadways. Were Mr. Nelson’s interpretation adopted, it would open the door to the picking-up of phones to place calls and check voice-mail while driving but paused momentarily in traffic, with a car in gear and only braked, however short that pause in movement. This could include fleeting pauses at traffic signals and signs in stop-and-go traffic as pedestrians crossed, as vehicles ahead navigated around double-parked vehicles, and many other circumstances.

People v. Nelson via Law.com