. . . but for most drivers 18 years or older, you've better be able to do it hands-free starting on July 1, 2008!
SB 1613, the "California Wireless Telephone Automobile Safety Act of 2006" (which actually becomes effective on July 1, 2008, and is automatically changed--but NOT repealed--as of July 1, 2011) requires that many--but not all--drivers on California highways use hands-free equipment to place and receive cell calls while driving.
Below, we'll take a section-by-section tour of the new law, and Jonathan will explain what it really means. Remember, however, that this analysis is of the law, not of any specific facts which may be related to your case. Please read our web site disclaimer, especially the part titled, "REALLY IMPORTANT INFORMATION". You can read it by clicking here.
Okay, now that you've read the disclaimer, let's begin, shall we? By the way, before we do, note that the headings in light yellow are not part of the law. Jonathan has put them there for your convenience.
Text of the Law |
Attorney Jonathan Kramer's Analysis |
Section 1 (which is only part of SB 1613, and not part of the Vehicle Code) |
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| THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. This act shall be known and may be cited as the California Wireless Telephone Automobile Safety Act of 2006. |
Section 1 sets out a plain English title is for the convenience of citation. It's mainly used by lawyers. In legal documents, after first being spelled out, you'll likely see it referred to as "CWTASA" law. That's a tasty mouthful, don't you think? |
Section 2 (which is only part of SB 1613, and not part of the Vehicle Code) |
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| SEC. 2. The Legislature finds and declares all of the following: (a) There are significant safety benefits associated with the availability of wireless communication technologies, including, but not limited to, providing assistance that helps save lives and minimizes property damage. (b) On a daily basis, California drivers make thousands of wireless telephone emergency 911 calls. (c) The availability of wireless telephones in motor vehicles allows motorists to report accidents, fires, naturally occurring life-threatening situations, including, but not limited to, rock slides and fallen trees, other dangerous road conditions, road rage, dangerous driving, criminal behavior, including drunk driving, and stranded motorist situations. (d) There is growing public concern regarding the safety implications of the widespread practice of using hand-held wireless telephones while operating motor vehicles. (e) It is in the best interests of the health and welfare of the citizens of the state to enact one uniform motor vehicle wireless telephone use law that establishes statewide safety guidelines for use of wireless telephones while operating a motor vehicle. |
Section 2 sets out the Legislature's intent and purpose in adopting this new law. This helps the public and judges understand what was intended, and why, by the Legislature when they voted to adopt law. Knowing what the Legislature had on its collective mind is very important when a judge wants to determine if someone has violated that which was intended by the law. This is called "legislative intent." It carries a lot of weight with the courts.
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Section 3 (which modifies the Vehicle Code and becomes effective on July 1, 2008, and is not automatically repealed) |
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| SEC. 3. Section 12810.3 is added to the Vehicle Code, to read: 12810.3. (a) Notwithstanding subdivision (f) of Section 12810, a violation point shall not be given for a conviction of a violation of subdivision (a) of Section 23123. (b) The section shall become operative on July 1, 2008. |
Section 3 adds a new section to the Vehicle Code, Section 12810.3. Subdivision (a) says that a violation point will not be noted on your driving record if you're convicted of violating Section 23123(a) of the Vehicle code. This overrides the existing Section 12810(f) language, which says in relevant part: |
Section 4 (which modifies the Vehicle Code and becomes effective on July 1, 2008, and is automatically repealed on July 1, 2011) |
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| SEC. 4. Section 23123 is added to the Vehicle Code, to read: 23123. (a) 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. |
Notice that this section doesn't specify just what hands-free means. Presumably it includes, without limitation, speakerphones, BlueTooth headsets, over-the-head earphone/microphone combinations, etc. The last clause of Subsection (a) requires that if you use the phone while driving, you must use it in the hands-free mode (whichever one you choose). |
| (b) Notwithstanding subdivision (a) of Section 42001 or any other provision of law, a violation of this section is an infraction punishable by a base fine of twenty dollars ($20) for a first offense and fifty dollars ($50) for each subsequent offense. | Once again, we must look to a different section of the Vehicle Code to figure out how this new section fits in to the big picture. Vehicle Code Section 42001 sets the basic fines for code violations. It's kind of like getting a full-flavor Vehicle Code violation without all the carbs of paying the regular price for the violation. And better yet, you don't get any of those nasty points on your records either, thanks to Section 3! |
| (c) This section 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. | This subsection provides a safe-harbor for people who use their cell phones without using hands-free during an emergency. An emergency is defined in this section, but the list is not exhaustive. I don't recommend trying to get out of a ticket in the following situation: Officer: "Lady, I pulled you over for driving and using a cell phone without a hands-free adapter." Lady: "Well, I know the law...it was an emergency! I had to let the coach know that little Johnnie will be late for league practice! " Officer:"Yeah, that's nice. Little Johnnie's going to be even later, now. Please sign right here at the bottom of the ticket." |
| (d) This section does not apply to an emergency services professional using a wireless telephone while operating an authorized emergency vehicle, as defined in Section 165, in the course and scope of his or her duties. | Here's a more carefully define safe harbor. And once more we have to look at a different section in the Vehicle Code to know whether we're going to be protected by the safe harbor: 165. "Authorized emergency vehicle" (d) Any state-owned vehicle used in responding to emergency fire, rescue or communications calls and operated either by the Office of Emergency Services or by any public agency or industrial fire department to which the Office of Emergency Services has assigned the vehicle. (f) Any vehicle for which an authorized emergency vehicle permit has been issued by the Commissioner of the California Highway Patrol. But notice that there's a final clause in this Section that we must consider, "...in the course and scope of his or her duties." This means that not only do you have to be in an emergency vehicle (as defined in Section 165, but you also have to be operating the vehicle as they would while on duty. If you're off duty and driving home in your emergency vehicle, you're likely not going to be protected by this safe harbor. If, however, you're "on call" and driving home, you could make a straight-face argument that you do since you'd be operating the vehicle while on call, and that would presumably mean you're still on duty (since you have an obligation to respond if called). |
(e) This section does not apply to a person when using a digital
two-way radio that utilizes a wireless telephone that operates by
depressing a push-to-talk feature and does not require immediate
proximity to the ear of the user, and the person is driving one of
the following vehicles: (h) This section shall become operative on July 1, 2008, and shall remain in effect only until July 1, 2011, and, as of July 1, 2011, is repealed. |
Subsection (e) exempts certain non-emergency users from the requirements of Section 4. To qualify for the Subsection (e) exemption, the driver must be using "a digital two-way radio that utilizes a wireless telephone that operates by depressing a push-to-talk feature and does not require immediate proximity to the ear of the use". What might that be? Think of Nextel's push-to-talk feature, which they call the "Walkie-Talkie" feature. You've likely seen (and heard) those annoying Nextel users in supermarkets who are too-loudly asking their significant other what they need to get while in the store. Each snippet of conversation begins with those tell-tail 3 beeps. But I digress... There's a second part of this Subsection that requires you to not only be using a walkie talkie feature, but also be driving one of the specified vehicles described in Subsection (e)(A)(1) through (e)(A)(5). This section requirement will exclude just about every Soccer Mom from the exemption. Subsection (f) is interesting. It applies to drivers of schoolbus and transit buses, and excludes them from the provisions of Section 4. Why? Because they're already subject to the VC Section 23125 rule, which took effect on January 1, 2005. What's that rule say? I'm glad you asked! 23125. (a) A person may not drive a schoolbus or transit vehicle, as defined in subdivision (g) of Section 99247 of the Public Utilities Code, while using a wireless telephone. (b) This section does not apply to a driver using a wireless telephone for work-related purposes, or for emergency purposes, including, but not limited to, an emergency call to a law enforcement agency, health care provider, fire department, or other emergency service agency or entity. (c) Notwithstanding any other provision of law, a violation of subdivision (a) does not constitute a serious traffic violation within the meaning of subdivision (i) of Section 15210. So, a careful reading of 23125(a) says you can't use a cell phone while driving a schoolbus or transit vehicle. Then 23125(b) turns right around and carves out a huge exception that say you CAN drive a schoolbus or transit vehicle and use a cell if you're using the cell phone for work-related purposes. ("Hey, Dispatch, can I leave early today?" would be worked related call.) And finally, 23125(c) says that if you DO use a cell phone while driving a schoolbus or transit vehicle, and you're not making the call for work or emergency purposes, it's not a serious violation of the vehicle code. Thank about that the next time you put your kids on the bus for school. Subsection (g) makes sense. If you're only driving on private property, you can use a hold-to-the-head cell phone. Why? Because who cares if you're distracted by the cell phone call and drive head-long into a tree so long as it's not only a public street. Also, note that the law here simply refers to ' private property'...that means that you can drive and use an otherwise-based cell phone on anyone's private property. Think of Homer Simpson holding a cell phone to his ear while driving his car doing doughnuts on Ned Flanders' front yard. While it may be trespass (but we know Ned will never file a civil or criminal complaint), Homer won't be liable under SB 1613. As a side note, after doing the doughnuts on Ned's front lawn, it's very likely that Homer will turn glassy-eyed, start drooling, and attempt to eat them. Finally, Subsection (h) sets a sunset date for THIS particular section (all of the rules in Section 4) as July 1, 2011. A 'sunset date' is a date, determined by the legislature in advance, when a particular law will be automatically repealed. What happens thereafter? Section 4 is repealed, and instantly thereafter Section 5 becomes the new law of California as of July 1, 2011. What's the difference between Section 4 and Section 5? Keep reading, and I'll point it out for you. |
Section 5 (which modifies the Vehicle Code and becomes effective on July 11, 2008, and is not automatically repealed) |
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| SEC. 5. Section 23123 is added to the Vehicle Code, to read: 23123. (a) 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. |
Hummm. No change here, other than the Section reference. The language in the replacement 23123(a) is the same as the original language. As after the same words are repealed on July 1, 2011, the same words replace the repealed words. That's the legislature for you! |
| (b) Notwithstanding subdivision (a) of Section 42001 or any other provision of law, a violation of this sections is an infraction punishable by a base fine of twenty dollars ($20) for a first offense and fifty dollars ($50) for each subsequent offense. | Hey, now here's a change! Before, Subsection (b) set the start date of the law. It's gone now since the law will already be in effect on July 1, 2011. In it's place, the same words in old Subsection (c) are moved-up one notch. By the way, after July 1, 2011, the fines for violations remain the same ($20 and $50). |
| (c) This section 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. | This is the same language, word-for-word, as in the initial version of the law at Subsection (d). See my discussion above for more on what this means...and doesn't mean. |
| (d) This section does not apply to an emergency services professional using a wireless telephone while operating an authorized emergency vehicle, as defined in Section 165, in the course and scope of his or her duties. | Yup. It's the same here as in Subsection (e) of the initial version of the law. |
| (e) This section does not apply to a person driving a schoolbus or transit vehicle that is subject to Section 23125. | Hey, wait a cotton-pick'n minute! What happened to the big exemption for non-emergency workers driving big trucks and the like while using mobile phones with push-to-talk technology? All gone! As of July 1, 2011, even those users formerly exempted under what was Subsection (e)(A)(1) through (e)(A)(5) now must use hands-free technology. No more 'Nextel Exemption' folks. Beep that three times! So now, what was Subsection (f) becomes Subsection (e) on a word-for-word basis. |
| (f) This section does not apply to a person while driving a motor vehicle on private property. | Thank goodness that the law of former Subsection (g) is pulled up into new Subsection (f). Even after July 1, 2011, it'll still legal to kill or maim yourself by driving on private property while using a cell phone held to your ear. |
| (g) This section shall become operative on July 1, 2011. | And finally, the former Subsection (h) sunset language is now replaced with this sunrise language. The Vehicle Code regulations in Section 5 becomes effective on July 1, 2011, the very moment that the Vehicle Code regulation in Section 4 are repealed (but you already knew that, didn't you). |
Section 6 (which does not modify the Vehicle Code, but is necessary under state law to explain who bears the cost of enforcement of SB 1613) |
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| SEC. 6. No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution. | Section 6 says that the State does not have to reimburse the local governments for enforcing this law (either before or after July 1, 2011). This is lawyer stuff that only impacts local governments, so most of you won't care about this. |
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That's it. We're done with our tour of SB 1613. If you'd like more information about SB 1613, or still have questions about this law and how it might relate to your case or newspaper story, please contact Jonathan Kramer, Esq. on (310) 312-9900. |
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