CALIFORNIA CRIMINAL DEFENSE: DRIVING WHILE USING A CELL PHONE
the defendant was convicted of violating California Vehicle Code section 23123, which, as you
all know, bars use of cell phones while driving (unless it's hands free). The defense was that the defendant was using it while he was stopped at a red light and thus he wasn't "driving" at the time. You'll be stunned to hear that we lose. The defense analogizes this case to Mercer (53 Cal.3d 753). The Supremes in Mercer held that a
defendant was not driving for purposes of DUI where the defendant was sleeping in a car parked at the curb in a residential neighborhood, even though the engine was running. The California Court of Appeal rejects application of Mercer to these facts, in an exhaustive opinion suitable for a death penalty case, fully 24 pages long; and there's a concurring opinion! Their point? This IS driving, but what happened in Mercer wasn't.
People v. Nelson; 2011 DJ DAR 16531; DJ, 11/15/11; C/A 1st, Div. 1
