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The People v. Carl Nelson

November 14, 2011


Trial Court: Contra Costa County Superior Court Trial Judge: Commissioner Joscelyn Jones Torru (Contra Costa County Super. Ct. No. 101191-5)

The opinion of the court was delivered by: Lambden, J.


Defendant Carl Nelson appeals from a traffic court judgment of guilt for violating Vehicle Code section 23123,*fn1 which states that persons shall not drive on public roadways using a wireless telephone unless the phone is configured for hands-free listening and talking, and used in that manner while driving. (§ 23123, subds. (a), (e).) Defendant was observed using his phone in his car as he paused at a red traffic light while driving in Richmond, California. He argues he was not "driving" because his car was stopped during his phone use, relying on our Supreme Court's determination in Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753 (Mercer) that the term "drive" as used in section 23512 (prohibiting driving under the influence of alcohol or drugs) requires proof of "volitional movement."

However, defendant's circumstances are materially different from those considered by the Mercer court, which defined "drive" as it applied to a person found asleep in a vehicle legally parked against the curb of a residential street, albeit with its engine running and lights on; in other words, the vehicle was not at the time being driven on public roadways. Here, defendant used his wireless telephone with his hands while driving on a public roadway at a time at which he paused momentarily at a red light. This situation is not addressed in Mercer or other relevant case law. We conclude, pursuant to our application of Mercer and black-letter rules of statutory interpretation, including our review of the language and legislative history of section 23123, subdivision (a), and our application of " 'reason, practicality, and common sense to the language at hand' " (MacIsaac v. Waste Management Collection & Recycling, Inc. (2005) 134 Cal.App.4th 1076, 1084 (MacIsaac)), that the Legislature intended section 23123, subdivision (a) to apply to persons driving on our public roadways who, like defendant, may pause momentarily while doing so in order to comply with the rules of the road. Therefore, we hold that defendant violated section 23123, subdivision (a) and affirm the judgment.


On the morning of December 28, 2009, defendant was cited by a police officer for an infraction of section 23123, subdivision (a). Violators are subject to a fine. (§ 23123, subd. (b).) Defendant contested his citation, leading to a trial before a Contra Costa County Superior Court traffic commissioner.

According to the traffic commissioner's statement of the evidence, which defendant does not challenge for the purposes of his appeal, the police officer testified that he pulled up on his motorcycle directly by defendant's driver-side door while defendant's car was stopped at a red traffic light in Richmond, and saw defendant sitting in the driver's seat with a flip-type cell phone in the process of dialing the phone and placing it to his ear. Defendant looked at the officer, removed the phone from his ear, and closed it. After the traffic light turned green and defendant drove his vehicle through the intersection, the officer stopped him and advised him he had been on his phone in violation of the law. Defendant objected that he only used his phone while stopped at the light and not while driving, but the officer cited him nonetheless. Defendant testified that he was checking his email and pushing some buttons on his phone, which was in his hand, as he waited for the traffic light to turn green, his car in gear.

Defendant argued to the traffic commissioner that he was not "driving" his vehicle when he used his wireless telephone. He based his argument on our Supreme Court's definition of "driving" in Mercer, supra, 53 Cal.3d 753, a case which considered whether or not a man found by police asleep and slumped over the wheel of a car legally parked against a curb of a residential street, its engine running and its lights on, who refused chemical tests was lawfully arrested without a warrant for violating section 23152, although the man's vehicle did not move in the officer's presence. (Mercer, at pp. 756-758.)

Defendant was found guilty of violating section 23123 and ordered to pay a fine and other penalties, totaling $103. The appellate division of the superior court affirmed his conviction. It subsequently granted his request for transfer certification to this court because it thought it necessary to determine "whether the term 'driving' as used in section 23123 requires contemporaneous volitional movement of the motor vehicle as an element of the offense." We granted review of the matter by order filed on March 30, 2011.


Defendant argues in this appeal, as he argued before the traffic commissioner, that section 23123, subdivision (a) does not prohibit hand-held wireless telephone use while a vehicle is stopped on the public roadways, relying on the Mercer court's definition of "driving." The People argue that section 23123 prohibits such use because the statute applies to persons "operating" their vehicles on the public roadways, and that, in the alternative, substantial evidence of such motion was presented at trial in any event. We conclude defendant listened to his hand-held wireless telephone during a fleeting pause at a traffic light "while driving" in Richmond and, therefore, violated section 23123, subdivision (a), as we now explain.

I. The Meaning of "Drive" and "While Driving" in Section 23123

A. The Governing Law

Section 23123 first became effective on January 1, 2007. (Stats. 2006, ch. 290, § 4, p. 1957.) Subdivision (a) of section 23123 states: "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." (§ 23123, subd. (a).)

A violation of section 23123, subdivision (a) is an infraction punishable by a base fine of $20 for the first offense and $50 for each subsequent offense. (§ 23123, subd. (b).)

Certain persons are exempt from the mandate in section 23123, subdivision (a).*fn2 For example, the mandate does not apply "to a person using a wireless telephone for emergency purposes, including, but not limited to, an emergency call to a law enforcement agency, health care provider, fire department, or other emergency services agency or entity" (§ 23123, subd. (c)), "to an emergency services professional using a wireless telephone while operating an authorized emergency vehicle . . . in the course and scope of his or her duties" (§ 23123, subd. (d)), or to a person while driving a motor vehicle on private property. (§ 23123, subd. (e).)*fn3

The Vehicle Code does not include definitions for the terms "drive" or "while driving,"*fn4 nor are we aware of any cases discussing the application of such terms to the present circumstances, i.e., a person who engages in an activity that is prohibited "while driving" as he pauses at a traffic light. Mercer, as we will discuss, does not. Defendant cites People v. Howard (2002) 100 Cal.App.4th 94, which, citing Mercer's definition of "driving," determined that a vehicle stalled and stopped in the center median of a street was not "proceeding" on a public street and, therefore, defendant was improperly convicted of exhibiting a firearm in violation of Penal Code section 417.3. (Howard, at pp. 97-99.) Central to the Howard court's ruling was its conclusion that, unlike in the present case, defendant's vehicle was "fully stopped, inoperative, and incapable of moving in any manner (except, presumably, if pushed)." (Id. at p. 99.) Based on this evidence, it rejected the People's argument that the vehicle could have been moved accidentally or if taken out of gear. (Ibid.) The court also noted that it had no reason to conclude that " 'proceeding on a public street or highway,' " as used in section 417.3, included "brief and inadvertent movement on the side of a street or highway" (ibid.), circumstances that are not relevant to the present case.

In our independent research, we have found two cases that, in discussing the difference between "operate" and "drive," quoted an American Law Reports annotation in which it was indicated that a person would be "operating," rather than "driving," a vehicle during " 'stops and parking on the highway.' " (Music v. Department of Motor Vehicles (1990) 221 Cal.App.3d 841, 849, fn. 7, cited favorably in Mercer, supra, 53 Cal.3d at p. 756; Padilla v. Meese (1986) 184 Cal.App.3d 1022, 1028, fn. 1, italics added.) Neither case, nor the quote from the annotation, addressed a driver's fleeting pauses for traffic lights while driving on the public roadways, however. In any event, the discussion of the annotation was dictum in both cases.

Defendant's argument that he was not "driving" is based on our Supreme Court's opinion in Mercer, supra, 53 Cal.3d 753, in which the court determined the meaning of the term "drive" as it is used in section 23152, which prohibits driving under the influence. Section 23152 provides in relevant part, " 'It is unlawful for any person who is under the influence of any alcoholic beverage or drug . . . to drive a vehicle.' " (§ 23152, subd. (a), italics added; Mercer, at p. 759.) As earlier noted, Mercer was found by police asleep and slumped over the wheel of a car legally parked, its engine running. (Mercer, at p. 756.) He refused chemical tests after his warrantless arrest for violation of section 23152. (Mercer, at pp. 756-757.) The court extensively analyzed the meaning of the term "drive" to determine if Mercer was lawfully arrested for a violation of section 23152 in the absence of evidence that the arresting officer observed his vehicle move, so as to answer the ultimate question of whether his driver's license could be suspended or revoked by statute because he refused the chemical tests. (Mercer, at pp. 757-758.) In doing so, the court drew a distinction between "drive" and "operate."

The Mercer court first looked at the language of section 23152. It determined that, "[i]n everyday usage of the phrase, 'to drive a vehicle,' is understood as requiring evidence of volitional movement of a vehicle" based on numerous dictionary definitions for "drive" that required movement. (Mercer, supra, 53 Cal.3d at p. 763 & fn. 5.)

Second, the Mercer court looked at the use of similar terms in related statutes. It concluded the Legislature intended "drive," as used in section 23152, subdivision (a) to be construed narrowly. (Mercer, supra, 53 Cal.3d at p. 763.) The court pointed out that the Legislature employed the use of the disjunctive "or" in statutes such as sections 305, 13353.2, and 12501 to distinguish between a person who drives "or" does such things as "operates" a vehicle, indicating the Legislature "knows how to broaden the scope of coverage when it wants to do so." (Mercer, at pp. 763-764.) The court also considered it noteworthy that the first " 'drunk driving' " statute in California made it illegal for an intoxicated person to " 'operate or drive' a vehicle," but that this was later changed to "drive" alone without explanation. (Id. at p. 764, fn. 6.)

Third, the Mercer court reviewed decades of case law from other states, which held that the word " 'drive,' when used in a drunk driving statute, requires evidence of a defendant's volitional movement of a vehicle." (Mercer, supra, 53 Cal.3d. at p. 764.) It also surveyed state statutes around the country that referred to "drive" and were similar to section 23152. (Mercer, at pp. 764-768.) The court found that most states distinguished between "drive" and "operate," and required volitional movement for the former. (Ibid.) It favorably quoted a South Carolina court's explanation of the difference between the terms as follows:

" 'The distinction between these terms is material, for it is generally held that the word "drive," as used in statutes of this kind, usually denotes movement of the vehicle in some direction, whereas the word "operate" has a broader meaning so as to include not only the motion of the vehicle, but also acts which engage the machinery of the vehicle that, alone or in sequence, will set in motion the motive power of the vehicle.' " (Mercer, supra, 53 Cal.3d at pp. 764-765.)

The Mercer court concluded from its analysis of these factors that a violation of section 23152 required "proof of volitional movement of a vehicle." (Mercer, supra, 53 Cal.3d at p. 768.) The court rejected the idea that it should ignore these factors "to effectuate what is asserted to be a better result in terms of social policy" because it "evinces a fundamental misunderstanding about the nature of statutory construction and the role of courts in our system of government." (Id. at pp. 768-769.) The court also "recognize[d] there are legitimate policy reasons that would support a decision to retain the current narrow ...

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