Smartphone Use and Driving … May Be Legal … But Still Not a Good Idea

California law prohibits the use of a cell phone while driving unless you are using a hands-free device. Specifically, California Vehicle Code section 23123 (a) 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.”

California Vehicle Code section 23123.5 includes texting and emailing. But, according to a recent Appellate Court decision you can do just about anything else.

A few months ago, the Fifth District Court of Appeals examined California’s hands-free statute and held that it only applies to “listening and talking,” not any use of a phone whatsoever. So it appears that the use of navigation software, music and just about any other app is allowed while driving … Score one for Candy Crush Saga and Word With Friends.

The case involved a Mr. Spriggs of Fresno, California who was driving when his route was interrupted by construction. What did he do? He pulled out his smartphone and and began to look for an alternate route using his navigation app. What he didn’t notice was the Highway Patrol officer next to his vehicle. He was stopped and issued a ticket for violation of California Vehicle Code section 23123.

Mr. Spriggs fought the ticket and lost in court. Not one to back down Mr. Spriggs kept fighting until the Fifth Appellate District took up his case where he argued that “he did not violate the [hands-free] statute because he was not talking on the telephone.” The Court agreed with Mr. Spriggs stating:

“[The] statute specifically states the telephone must be used in a manner that allows for “hands-free listening and talking.” (§ 23123(a).) It does not state that it must be used in a manner that allows for hands-free looking, hands-free operation or hands-free use, or for anything other than listening and talking. Had the Legislature intended to prohibit drivers from holding the telephone and using it for all purposes, it would not have limited the telephone’s required design and configuration to “hands-free listening and talking,” but would have used broader language, such as “hands-free operation” or “hands-free use.”

Does this mean you are free to fling an Angry Bird or do some Candy Crushing? Not really. First, it is still not safe and we all have seen way too many accidents caused by distracted driving whether it was because of hot coffee spilling in your lap, an ill-timed lipstick touch-up, changing the radio station or using a smartphone. Additionally, the California Highway Patrol and other local law enforcement agencies have indicated that while there is not a specific Vehicle Code section for “distracted driving” they intend on citing people for violation of California Vehicle Code section 22350 which states:

“No person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or property”

What this means is that law enforcement will cite you for violation of this statute by claiming that your use of a smartphone made driving at any speed unsafe. So, how fast is too fast while sipping a latte, applying make-up or checking your smartphone is now a vague matter of officer discretion.

The best decision you can make though is to use a hands-free device and put the phone down.