Advice sought for purposefully "appearing" to break the law for

[Danny D.]

I seek advice to prepare, ahead of time, to fight a motor vehicle
violation case that I intend to provoke to prove a point.

My point (which you may or may not agree with) is to prove that the
current California cell-phone restriction rules are too generic, and
therefore consist of an unreasonable search & seizure.

Suffice to say any smart phone today can be used in a vehicle for quite a
few things, only one of which is telephone calls - yet - simply holding
one in your hands while driving - is sufficient in California to get you
pulled over and cited.

Given I strongly feel that is an unreasonable law, I would like to
prepare to fight it.

My plan?
I'm not sure - but - it seems that I need a witness in the vehicle, and
then I need a camera to record what happens. I then need an inoperable
cell phone (pretty easy to do ... all I need to do is pull the SIM card
or battery). Then I need an officer to pull me over simply for holding it
in my hand. That also seems easy to do - although this is where I need
your advice.

What I'm thinking of doing is simply holding that inoperative cell phone
in my hand, visible, when I see a patrol car. I might even drive by a
police station time and time again in order to provoke the desired
response.

Once I get the ticket, I'm not sure whether I should explain the 'test'
to the officer - or whether I should remain silent and produce my
evidence in court.

Assuming a ticket ensues, once I win in court (I can't imagine losing),
I'm not sure how to best take it to the next step in the process.

Q: What advice would you give me in order to achieve my goal (which,
fundamentally, is to have the cellphone law amended or repealed due to
what I consider to be an unreasonable search & seizure?

Note: I don't wish to debate whether the cell phone law itself is
reasonable or not in this thread - I simply wish ADVICE as to HOW to win
the case and get action from the government to repeal or amend the law.

[Ripple Whine]

Danny D. wrote:

> My point (which you may or may not agree with) is to prove that the
> current California cell-phone restriction rules are too generic, and
> therefore consist of an unreasonable search & seizure.

I always wanted to hold my wallet against my ear, to see if I get pulled
over for that egregious "offense".

What amazes me is that a dog can run free in the front seat, and a lady
can put on her morning makeup, and I can fiddle all I want with my GPS or
with my radio while talking to my passenger, yet, just holding a phone in
my hand to talk is illegal.

Laws shouldn't be so capricious.

[David L. Martel]

The cell phone laws were enacted because cell phones can be a distraction
while operating a motor vehicle. You certainly may speak to various State
legislators to enact or amend these laws.

Your intent in "appearing" to use a cell phone will almost certainly
result in a ticket. You'll spend time (and money) in court. In court a judge
or jury will determine whether you are using a cell phone. To my mind you
are "using" a cell phone to prove a point. I see a guilty verdict since you
are using the phone. You may then appeal, of course. All of this costs money
and time.

Remember that if the court creates restrictions that make the current
cell phone law useless. The legislature will enact a new law because the
auto insurance folks will lobby for one. Sorry, I think your plan will
accomplish little.

Trying to circumvent the legislature with court rulings won't work, in my
opinion. So cut out the middleman. Speak to your legislator. He has offiice
flunkies who will listen. They'll give you coffee, even. If you really want
to "lobby" for this, writing a few checks to the "Fred re-election" fund
will actually get you a meeting with Fred. You can then make your case.
Maybe Fred will try to legislate improvements to the cell phone law.

Good luck,
Dave M.

[D.F. Manno]

"Danny D." <dan...@notyahoo.com> wrote:

> I seek advice to prepare, ahead of time, to fight a motor vehicle
> violation case that I intend to provoke to prove a point.
>
> My point (which you may or may not agree with) is to prove that the
> current California cell-phone restriction rules are too generic, and
> therefore consist of an unreasonable search & seizure.
>
> Suffice to say any smart phone today can be used in a vehicle for quite a
> few things, only one of which is telephone calls - yet - simply holding
> one in your hands while driving - is sufficient in California to get you
> pulled over and cited.

What is the state unreasonably searching or seizing in this scenario?

The government can and does bar licensed drivers from doing lots of
things while driving. The California Vehicle Code is a veritable laundry
list of things you may not do while driving. How is this specific
regulation a bridge too far?
--
D.F. Manno
domm...@aim.com

[bonomi]

Danny D. <dan...@notyahoo.com> wrote:
> I seek advice to prepare, ahead of time, to fight a motor vehicle
> violation case that I intend to provoke to prove a point.

[[.. sneck ..]]

> Note: I don't wish to debate whether the cell phone law itself is
> reasonable or not in this thread - I simply wish ADVICE as to HOW to win
> the case and get action from the government to repeal or amend the law.

The way to get the law changed is to either lobby the Ca. Legislature,
or get enouch signatures on petitions to get a citizens initiative on the
ballot.

You _cannot_ win, trying to force this through the court system.
Operating a motor vehicle upon a public roadway is a _privilege_,
not a 'right', and the state CAN impose whatever restrictions it
chooses. See the body of case law on "implied consent", confirming
the government's authority to do so.

[Stuart A. Bronstein]

"David L. Martel" <mart...@frontier.com> wrote:

> The cell phone laws were enacted because cell phones can be a
> distraction while operating a motor vehicle. You certainly may
> speak to various State legislators to enact or amend these
> laws.

Not only can they be a distraction, but studies show them to be a
distraction. In fact from a statistical standpoint driving while
talking on a cell phone (hands free or not) is as dangerous as
driving drunk.

___
Stu
http://DownToEarthLawyer.com

[Gordon Burditt]

> My point (which you may or may not agree with) is to prove that the
> current California cell-phone restriction rules are too generic, and
> therefore consist of an unreasonable search & seizure.

I don't know what this law says. For discussion purposes, please
quote it. A quick search indicates that section 23123 of the
California Motor Vehicle law "A person shall not drive a motor
vehicle while using a wireless telephone" unless the phone is
hands-free (and it doesn't mention hands-free DIALING). It's also
a "primary enforcement offense", which means that they don't need
any other reason to pull you over, just reasonable suspicion of
UWTWD. I will argue that "using a wireless telephone" includes
trading it for gasoline, using it as a clock, playing Angry Birds,
combing your hair, using it for GPS navigation, or using it to smash
flies.

If it says that it is illegal to operate a handheld device while
driving, then if the cops see you driving with what appears to be
a handheld device in your hand, that seems like that gives the cops
reasonable cause to stop you. (Remember, it's been ruled reasonable
cause for a cop to SHOOT and KILL you if you are carrying a
realistic-looking but TOY gun in a dark place and you are 12 years
old).

There seem to be two schools of thought on the justification for
cellphone laws. One says that holding the device in your hand
impairs your control of the vehicle - therefore use of hands-free
devices is OK. The other says that use of the device takes away
your attention from the task of driving - therefore the use of
hands-free devices is *NOT* OK, and conversations with passengers
are also risky.

I fall into the second group - I believe hands-free is dangerous
while driving. A hand-held cellular answering machine which gives
no indication that you are receiving a call is not dangerous, but
there's no reason to hold it in your hand, and besides, it's usually
provided at the cellular phone company and called "voice mail".
Legislatures and city councils seem to usually pass the restrictions
on handheld devices only. California seems to have followed that
for adults and banned both handheld and hands-free for minors.

If the law only restricts hand-held devices, then the claim is that
having your hand(s) occupied is dangerous, and that would apply
equally to something you wouldn't expect the law to cover (and
whether it does depends on the exact wording of the law). For
example, it *might* ban other things in your hand like an electric
razor, lipstick, a clock (note: when I'm not driving I may use my
cellphone as a watch much more often than using it as a phone,
calendar, address book, or whatever, and I don't think I'm alone
in using it instead of a wristwatch), a handgun, an asthma inhaler,
or a ham sandwich. Chances are the cops can't get away with calling
the ham sandwich a "device", but trying to eat one while driving
is still distracting.

> Suffice to say any smart phone today can be used in a vehicle for quite a
> few things, only one of which is telephone calls - yet - simply holding

And they banned *ALL* of them, not just telephone calls.

> one in your hands while driving - is sufficient in California to get you
> pulled over and cited.

Does the law only ban making telephone calls, and not texting, or
composing an email, or playing Angry Birds, or using it for
turn-by-turn navigation, etc.? Or does it just refer to "using a
handheld device ..."? The law as stated on the California DMV web
site bans "using a wireless telephone", and does not limit it to
making telephone calls.

> Given I strongly feel that is an unreasonable law, I would like to
> prepare to fight it.

*WHAT* is unreasonable? The cop pulling you over for having something
that looks like a functioning cell phone in your hand? Or the law
that you can't operate a cell phone while driving? It makes a big
difference. I don't think you'll get very far by arguing that most
people who have a cell phone in their hand while driving have dead
batteries or left their SIM card home, so it's unreasonable search.
You might argue that because there was no battery, you couldn't
possibly be making a telephone call, and since that's the only thing
the law outlaws, you're not guilty - but that doesn't make the stop
unreasonable search.

> My plan?
> I'm not sure - but - it seems that I need a witness in the vehicle, and
> then I need a camera to record what happens. I then need an inoperable
> cell phone (pretty easy to do ... all I need to do is pull the SIM card
> or battery). Then I need an officer to pull me over simply for holding it
> in my hand. That also seems easy to do - although this is where I need
> your advice.

Depending on how the law is written, you might be able to prove that
the device was non-functional (even if it was a display dummy, with
*no* electronics inside), and *STILL* be found guilty.

Pulling the SIM card does not make it impossible to make a telephone
call (to 911). If there is no exception allowing calls *to 911*,
(at least one of the California laws has such an exception)
don't just pull the SIM card. Pull the battery. It might be
interesting to get pulled over while you are in the middle of a
call to 911 reporting some strange guy with a gun following you in
what you believe to be a stolen police car, but the legal expenses
may be detrimental to your wallet.

> What I'm thinking of doing is simply holding that inoperative cell phone
> in my hand, visible, when I see a patrol car. I might even drive by a
> police station time and time again in order to provoke the desired
> response.
>
> Once I get the ticket, I'm not sure whether I should explain the 'test'
> to the officer - or whether I should remain silent and produce my
> evidence in court.

If you get beaten to death, you won't be able to win in court.
Neither will you win if the proof that the phone is inoperative
happens to "get mislaid". Wait until court.

> Assuming a ticket ensues, once I win in court (I can't imagine losing),
> I'm not sure how to best take it to the next step in the process.

Depending on *EXACTLY* what the law outlaws, you stand a good chance
of losing. Does the law actually use the phrase "telephone call"?
"Using a handheld device" probably includes shaving with a
battery-powered electric razor.

> Q: What advice would you give me in order to achieve my goal (which,
> fundamentally, is to have the cellphone law amended or repealed due to
> what I consider to be an unreasonable search & seizure?

I believe that if the cop saw me driving (in CA) while holding my
billfold, which when folded up is about the same size as my Blackberry,
in my hand, it is *NOT* unreasonable to pull me over. It is not
reasonable for him to then issue a ticket if he can't find a phone.

> Note: I don't wish to debate whether the cell phone law itself is
> reasonable or not in this thread - I simply wish ADVICE as to HOW to win
> the case and get action from the government to repeal or amend the law.

Proving that pulling me over for having a cellphone in my hand while
driving is unreasonable search and seizure will not make the law
against using a cellphone while driving go away. They will probably
then set up some privacy-invading warrant-free system so cops can
call in your plate number and find out if your cellular phone is
in use making a call or texting, THEN pull you over.

[Danny D.]

D.F. Manno wrote:

> What is the state unreasonably searching or seizing in this scenario?
>
> The government can and does bar licensed drivers from doing lots of
> things while driving.

The unreasonable part is that I have absolutely no intention of talking
on the cellphone. The search & seizure part is the fact that you are
pulled over - which constitutes the legal process of being detained.

I like the suggested idea of holding my wallet to my ear, to prove the
point, instead of having any telephone in the vehicle at the time of
being detained.

The ticket will be written and there will be proof (video & audio &
witness) on file showing the entire episode highlights that the cellphone
law results in people being pulled over for having black objects in their
hands.

The point is to make a case that the law is written such that anyone
holding ANY object in their hand can (and will) be pulled over - which is
the entire point!

One key question that I'd like to ask of you for advice:
Q: Should I tell the officer - or - should I wait 'till we get to court?

[Danny D.]

David L. Martel wrote:

> Your intent in "appearing" to use a cell phone
> will almost certainly result in a ticket.

That's the whole point.

I'm NOT using a cell phone - yet - it would result in a ticket.

> a judge or jury will determine whether you are using a cell phone.

I'll make sure with proof (video, audio, witness, cell-phone records)
that there is absolutely no 'use' of the phone or text features!

> I see a guilty verdict since you are using the phone.

I think the law is written such that you have to actually be making a
call or text at the time that you're observed by the officer.

In fact, I like the idea of using the wallet, so that there isn't even a
cell phone in the vehicle at the time the vehicle is pulled over (since
they might subphoena GPS or triangulation records).

The whole point is that I'd like advice for HOW to best make a case that
the law results in people being pulled over for holding objects in their
hands, which may or may not be cellphones - but that's the whole point.

They're objects to the officer - yet - you get pulled over for holding
them.

And, there is no law that says you can't hold an object in your hand,
yet, you'll be pulled over for doing so.

My key question is whether or not to tell the officer his mistake at the
time of being pulled over. How are these purposeful cases handled?

[Danny D.]

Stuart A. Bronstein wrote:

> Not only can they be a distraction, but studies show them to be a
> distraction. In fact from a statistical standpoint driving while
> talking on a cell phone (hands free or not) is as dangerous as driving
> drunk.

I thought I made it clear that the thread was not about whether or not a
cellphone law saves lives.

The question is how to provoke a court case that I can't lose, and, to
highlight the fact that the law is written badly such that a person can
and will get pulled over for holding an object in their hands.

The key question is about the PROCEDURE for making an iron-clad case out
of it, such that it can be used LATER to attack the legality of the law.

[A Michigan Attorney]

Danny D. wrote:
> I seek advice to prepare, ahead of time, to fight a motor vehicle
> violation case that I intend to provoke to prove a point.
>
> My point (which you may or may not agree with) is to prove that the
> current California cell-phone restriction rules are too generic, and
> therefore consist of an unreasonable search & seizure.

That approach is futile. Search and seizure are constitutional issues
which are not implicated by the law you described.

> Suffice to say any smart phone today can be used in a vehicle for quite a
> few things, only one of which is telephone calls - yet - simply holding
> one in your hands while driving - is sufficient in California to get you
> pulled over and cited.
>
> Given I strongly feel that is an unreasonable law, I would like to
> prepare to fight it.
>
> My plan?
> I'm not sure - but - it seems that I need a witness in the vehicle, and
> then I need a camera to record what happens. I then need an inoperable
> cell phone (pretty easy to do ... all I need to do is pull the SIM card
> or battery). Then I need an officer to pull me over simply for holding it
> in my hand. That also seems easy to do - although this is where I need
> your advice.

So you want to invite prosecution by using an object that is not
prohibited. That plan won't work. You may succeed in being arrested or
ticketed. But you cannot challenge a law by skirting it. You must have
circumstances where the law actually *applies*. You should use an actual
functioning cell phone.

> Assuming a ticket ensues, once I win in court (I can't imagine losing),

I cannot imagine you winning. You should be prepared to pay the full
fines and costs and serve the full term of incarceration (if any).

> I'm not sure how to best take it to the next step in the process.
>
> Q: What advice would you give me in order to achieve my goal (which,
> fundamentally, is to have the cellphone law amended or repealed due to
> what I consider to be an unreasonable search & seizure?

To amend or repeal the law you must go through the legislature (or the
ballot measure process, if available). Judicial process can only result
in a ruling that the law is (or is not) unconstitutional.

[Don]

Danny D. wrote:
> I seek advice to prepare, ahead of time, to fight a motor vehicle
> violation case that I intend to provoke to prove a point.

I wonder what would happen if you said to the officer, "That's
not a phone, it's a camera." A lot of those phones do have that
function, I believe. And as far as I know, there are no laws
prohibiting the use of a camera in a vehicle. A lot of people
do take pictures from the car window while passing interesting
scenes on trips, etc. Who is to say what is the purpose of your
holding that instrument in your hand? just because your camera
could also be used for communicating by phone, is that any
reason to prohibit you for using it in a vehicle to take pictures?

[slide]

I hear this a good deal but is it proved? That is, has there been a
study or more using valid method, which shows that incidents per km
increase if one drives drunk or using a cell phone? One may make a
'stands to reason' argument but then, one could also make a stands to
reason argument about dogs in the front seat which, AFAIK, is legal
everywhere.

I'm truly curious because I am skeptical that such studies have actually
been conducted. Are you aware of any such published studies where the
method used was also published?

[Stuart A. Bronstein]

This may be the study I remember hearing about:

http://snipurl.com/265ks2tgoogle.com

And here is one non-scientific made-for-tv test where they
concluded that driving while talking is worse than driving under
the influence:

http://snipurl.com/265kse4

If you check google you will find many more references to this
issue.

___
Stu
http://DownToEarthLawyer.com

[Stuart A. Bronstein]

"Danny D." <dan...@notyahoo.com> wrote:

> The question is how to provoke a court case that I can't lose,
> and, to highlight the fact that the law is written badly such
> that a person can and will get pulled over for holding an
> object in their hands.

You can do that kind of thing with respect to lots of laws - you can
go to a bank and point your finger from your pocket as if you had a
gun. And that could get you sent to jail. Pretending to use a cell
phone is not unique and is not clever.

> The key question is about the PROCEDURE for making an iron-clad
> case out of it, such that it can be used LATER to attack the
> legality of the law.

You can attack the law at any time whether you actually use a cell
phone or not. In fact if you only pretend to use a phone, the court
may well not let you challenge the law, because you would be claiming
that that law doesn't apply in your situation.

___
Stu
http://DownToEarthLawyer.com

[Stuart A. Bronstein]

"Danny D." <dan...@notyahoo.com> wrote:

> One key question that I'd like to ask of you for advice:
> Q: Should I tell the officer - or - should I wait 'till we get
> to court?

If you don't tell the officer that you weren't using a phone, and
that in fact you don't have a phone in the car at all, the court will
presume that you in fact were using a phone, and your whole project
will be compromised.

On the other hand if you tell the officer, it is unlikely you will
get a ticket anyway, and that will foil your plans as well.

___
Stu
http://DownToEarthLawyer.com

[A Michigan Attorney]

I think I get it now. You want to use the prospect of improper traffic
stops to attack the law that provides a basis for them. That won't work.

Police get leeway to investigate activity that appears illegal from
their point of view. Police sometimes stop people who appear to have
broken a law, which their investigation then reveals (sometimes at the
scene, sometimes not) was a mistaken impression. Police are not required
to know *in advance of a stop* that a law has actually been broken. That
would be expecting too much from them. That's why the "reasonable and
articulable suspicion" standard exists.

[A Michigan Attorney]

Danny D. wrote:
> D.F. Manno wrote:

>> What is the state unreasonably searching or seizing in this scenario?
>>
>> The government can and does bar licensed drivers from doing lots of
>> things while driving.

> The unreasonable part is that I have absolutely no intention of talking
> on the cellphone. The search & seizure part is the fact that you are
> pulled over - which constitutes the legal process of being detained.

Your contemplated traffic stop probably wouldn't be unreasonable. The
police don't have to know *in advance of the stop* that the law was
broken. They only have to have "reasonable and articulable suspicion"
that it was broken. The fact that the officer's reason for the stop
(suspected violation of this law you describe) turns out to have been
incorrect does not render the law unconstitutional. Even if the officer
doesn't have the required level of suspicion, that only renders the
*stop* unreasonable -- a bad stop doesn't affect the underlying law.

> I like the suggested idea of holding my wallet to my ear, to prove the
> point, instead of having any telephone in the vehicle at the time of
> being detained.
>
> The ticket will be written and there will be proof (video & audio &
> witness) on file showing the entire episode highlights that the cellphone
> law results in people being pulled over for having black objects in their
> hands.
>
> The point is to make a case that the law is written such that anyone
> holding ANY object in their hand can (and will) be pulled over - which is
> the entire point!

Let's assume that this law -- as written -- encompasses any object a
driver holds in his hand. So what? The constitution doesn't prohibit
burdensome laws.

[Mike Anderson]

<is using a cell phone while driving really as distracting/bad
as drunk driving?>

>> I hear this a good deal but is it proved? That is, has there
>> been a study or more using valid method, which shows that
>> incidents per km increase if one drives drunk or using a cell
>> phone? One may make a 'stands to reason' argument but then, one
>> could also make a stands to reason argument about dogs in the
>> front seat which, AFAIK, is legal everywhere.
>>
>> I'm truly curious because I am skeptical that such studies have
>> actually been conducted. Are you aware of any such published
>> studies where the method used was also published?

> This may be the study I remember hearing about:
>
> http://snipurl.com/265ks2tgoogle.com

Should have been http://snipurl.com/265ks2t

One line in the article was rather telling: "One factor that may have
contributed to the absence of accidents...In the current study,
participants were well rested prior to the consumption of alcohol,
potentially lowering the relative risk factors."

I.e. they seemed to have expected much WORSE results from the drunk
driving than what they did find. So I would tend to suspect the results
overall right there.

> And here is one non-scientific made-for-tv test where they
> concluded that driving while talking is worse than driving under
> the influence:
>
> http://snipurl.com/265kse4

Mythbusters? It's a great show and very entertaining but a sample
set of 2-3 people is NOT good science.

[Mike Anderson]

A Michigan Attorney wrote:
> Danny D. wrote:

<snip>

>> Q: What advice would you give me in order to achieve my goal (which,
>> fundamentally, is to have the cellphone law amended or repealed due to
>> what I consider to be an unreasonable search & seizure?

> To amend or repeal the law you must go through the legislature (or the
> ballot measure process, if available). Judicial process can only result
> in a ruling that the law is (or is not) unconstitutional.

I FULLY agree with you (and others) that Danny is "expelling liquid
bodily waste towards a air movement source" in this case but lets say
some case DID go to court in regards to some law and resulted in the
court deciding that particular law is unconstitutional (and it was
upheld in appeals, etc.) Doesn't that have basically the same functional
result as repeal, in that the law wouldn't be able to be enforced in the
future? (although, if it remains on the books, people still may get
charged and then have to fight it in court to win it as opposed to not
even being charged with it to begin with.)

[Mike Anderson]

If you ask me, that's even WORSE than using the phone to talk
on as you have to look at what you're taking the picture of.
But most of those laws simply say "use of a hand-held wireless
device" and thus ANY type of use would be illegal.

[Gordon Burditt]

> I wonder what would happen if you said to the officer, "That's
> not a phone, it's a camera." A lot of those phones do have that

But you'd be lying. It's a phone *AND* a camera. And probably a
bunch of other things.

> function, I believe.

Which doesn't make it "not a phone".

> And as far as I know, there are no laws
> prohibiting the use of a camera in a vehicle. A lot of people

I'm pretty sure there are laws against using a camera which happens
to double as a gunsight and is attached to a loaded rifle. Just
possessing the loaded rifle without a permit may be illegal. And
if you're seen driving down the road looking down the rifle scope
with the rifle sticking out the driver's window, expect to get
stopped, even if you *DO* have a carry permit.

I claim that if the law prohibits use of a "wireless telephone"
while driving (that phrase is used in one of the California laws),
then it prohibits taking pictures with it, it prohibits using it
to provoke a deliberate ticket, it prohibits using it to get laid
by showing your expensive phone to your passenger by holding it in
your hand, and it prohibits its use as a heart defibrillator (although
this use might be allowed as an "emergency").

If the law only prohibits the specific uses of phone calls and
texting, then you're in the clear, but you probably should NOT be
in the clear for Tweeting, posting to Facebook, video calls, composing
email, or playing Angry Birds, or watching video advertising, so
the law shouldn't be too specific about the technology behind the
use.

> do take pictures from the car window while passing interesting
> scenes on trips, etc.

While driving? I hope not, if the driver has to actually aim the
camera. If he's wearing a helmet-cam and can aim it just by turning
his head, it's less of a distraction unless he still has to take
his eyes off of traffic.

I will admit to having taken pictures while driving by picking up
the camera (not a phone, just a digital camera) with one hand,
aiming it by feel, and clicking the shutter. As an experiment in
photography, it didn't work very well. Way too little of the scenery
in the photograph. It works much better if you let a passenger
operate the camera.

> Who is to say what is the purpose of your
> holding that instrument in your hand?

If the law doesn't outlaw only specific purposes, then it outlaws
holding it in your hand for *ANY* purpose or for *NO* purpose. So
the purpose is irrelevant.

> just because your camera
> could also be used for communicating by phone, is that any
> reason to prohibit you for using it in a vehicle to take pictures?

Yes. If the purpose of the law is to reduce driver distraction,
perhaps it should cover holding cameras (while driving) as well.
Also guns (radar (cops, take note!), ballistic, and paintball).
And babies. And girlfriends.

Remember, an officer is entitled to pull you over for looking
like a missing or wanted person, or driving a car that looks
like one that was used in a crime (perhaps vaguely described
with only a partial license plate number). Just pulling you
over by itself is not unreasonable search and seizure.

[David L. Martel]

Danny,

>> Your intent in "appearing" to use a cell phone
>> will almost certainly result in a ticket.

> That's the whole point.

It's your time and money to waste. Remember that you'll be paying for
parking, snacks et c. for you and your witnesses at court.

> I'm NOT using a cell phone - yet - it would result in a ticket.

The court will decide whether you were using the cell phone. Your claim
of not using may be ignored. Vehicle Code ? 23123 does not define "use".

> I think the law is written such that you have to actually be making a
> call or text at the time that you're observed by the officer.

Vehicle Code ? 23123 does not define using. Where do you see these
definitions?

> The whole point is that I'd like advice for HOW to best make a case that
> the law results in people being pulled over for holding objects in their
> hands, which may or may not be cellphones - but that's the whole point.
>
> They're objects to the officer - yet - you get pulled over for holding
> them.

Yes, they are objects, they are also probable cause. Remember that you
are legally allowed to call 911 while driving. If a police officer sees you
calling 911 he may issue you a ticket. Then you must show the court that you
were using the cell phone to call 911. The court will decide your guilt or
innocence.

> And, there is no law that says you can't hold an object in your hand,
> yet, you'll be pulled over for doing so.

> My key question is whether or not to tell the officer his mistake at the
> time of being pulled over. How are these purposeful cases handled?

The officer is not making a mistake. There is probable cause to issue a
ticket. He will not accept your explanation, most likely. You then get to
tell your story to the judge (or jury). That's the way the system works. The
cop sees what looks like an infraction, he issues a ticket, you get to go to
court if you think you are not guilty, the court then decides whether you
are guilty.

Good luck,
Dave M.

[micky]

Don <dwz...@telus.net> wrote:
> Danny D. wrote:

>> I seek advice to prepare, ahead of time, to fight a motor vehicle
>> violation case that I intend to provoke to prove a point.

>I wonder what would happen if you said to the officer, "That's
>not a phone, it's a camera."

It doesn't seem right to say it's not a phone when it is both a phone
and a camera.

> A lot of those phones do have that
>function, I believe. And as far as I know, there are no laws
>prohibiting the use of a camera in a vehicle. A lot of people
>do take pictures from the car window while passing interesting
>scenes on trips, etc. Who is to say what is the purpose of your
>holding that instrument in your hand? just because your camera
>could also be used for communicating by phone,

See. You say so too.

Like Clorets, it's two mints in one.

[Ripple Whine]

slide wrote:

> but then, one could also make a stands to reason argument about
> dogs in the front seat which, AFAIK, is legal everywhere.

What irks me about cellphone laws is the impulsive nature of the people
who promote the law, which is, in fact, an arbitrary inconsistent
reaction to people driving while distracted.

I'm sure that there are PLENTY of distractions while driving, e.g., dogs,
hot coffee, loud music, applying makeup, shaving, fiddling with the radio
or GPS, etc. ... yet ... you don't see laws against them.

It's a capricious law - and as such - is unsustainable.

Furthermore, the law is arbitrary and unenforceable in that smart phones
have hundreds of uses, only two of which are forbidden - yet the flawed
law makes no mention of how an officer is to tell the difference at the
time of the unlawful detention.

[Danny D.]

On Thu, 17 Jan 2013 12:55:51 -0500, Stuart A. Bronstein wrote:

> you can go to a bank and point your finger from your pocket=20
> as if you had a gun.=20

That is NOT the same thing because the laws about robbing banks at=20
gunpoint are not arbitrary like the cell-phone laws are.

It 'would' be the same thing IF, for example, there was a law that you=20
couldn't go into a bank with your hand in your pocket. But that law=20
doesn't exist ... so the bank-robber analogy argument is spurious.


>> The key question is about the PROCEDURE=20
> =20
> if you only pretend to use a phone, the court may well not let=20

> you challenge the law, because you would be claiming that that
> law doesn't apply in your situation.

THIS IS A KEY POINT!

I'm asking HOW the system works.=20

Based on what you said, does the 'system' work this way?
0. The arbitrary & capricious law goes into effect
1. I challenge this capriciousness by attacking the arbitrary nature of=20
the law
2. I win in court - thereby proving the law results in innocent people=20
being detained merely for holding said object in their hands while drivin=
g
3. NOW WHAT HAPPENS?

How would I best use that successful defense to challenge the capricious=20
nature of the cell phone laws?

[Danny D.]

A Michigan Attorney wrote:

> Police are not required to know *in advance of a stop* that a law has
> actually been broken. That would be expecting too much from them. That's
> why the "reasonable and articulable suspicion" standard exists.

This is the gist of the problem.

It is 'my premise' that the law results in innocent people being pulled
over merely for holding an object in their hands while driving. I can
easily prove this is the case, even with my limited resources since all I
have to do is hold an object in my hand while driving to get pulled over.

It is harder for me (with my limited resources) to prove that the law is
capricious in that there are plenty of distractions not covered (e.g.,
dogs, radios, GPS, makeup, shaving, loud music, conversation, etc.) by
the law which have an equal or greater effect on driving performance.

So, I wished to attack the 'easy' stuff first.

I'm sure I can provoke the desired response merely by holding my wallet
to my ear and, with the proper witnesses and evidence, I'm just as sure
I'll win in court ...

So the question really boils down to this:

Q: What would the next step be after winning the court case in order to
begin the process of getting the cell phone law revised or eliminated?

[Zen]

D.F. Manno wrote:

> How is this specific regulation a bridge too far?

I think the point is clear that the law is written anyone
holding any object (even a GPS or smart phone or pack of
cigarettes) in their hands will be detained by the police.

[Danny D.]

Gordon Burditt wrote:

> section 23123 of the California Motor Vehicle law "A person shall not
> drive a motor vehicle while using a wireless telephone" unless the phone
> is hands-free

> It's also a "primary enforcement offense"

> I will argue that "using a wireless telephone" includes trading it for
> gasoline, using it as a clock, playing Angry Birds, combing your hair,
> using it for GPS navigation, or using it to smash flies.

This is very interesting.

I'm already arguing that the law is too broad - and - your (accurate)
assessment of the law confirms that belief beyond my wildest imagination!

So, clearly (IMHO), the law is (vastly) too broad to be legally tenable.

Isn't that enough of a reason to challenge it?

[Joe Mastroianni]

Gordon Burditt wrote:

> The law as stated on the California DMV web site bans "using a wireless
> telephone", and does not limit it to making telephone calls.

The question is what was the 'intent' of the law.

Does the word 'wireless' indicate that the wireless transmitter must be
in use (i.e., texting or talking or navigating)?

And, how then does a (prohibited) cellphone differ from a radio or GPS
device?

This law makes no sense to me.

[Zen]

A Michigan Attorney wrote:

> Let's assume that this law -- as written -- encompasses any object a
> driver holds in his hand. So what? The constitution doesn't prohibit
> burdensome laws.

But isn't that the entire point?

The law does NOT assume that "any object" is an offense.

The law singles out a "wireless telephone", yet a wireless radio or
wireless GPS device or even a wireless tv is not singled out.

And, as eloquently already pointed out, the law is too broad in that the
driver could be using the "wireless telephone" to swat flies, and that
would be a punishable offense.

Did the framers really intend the law to be so capriciously interpreted?

[Danny D.]

A Michigan Attorney wrote:

> You must have circumstances where the law actually *applies*.
> You should use an actual functioning cell phone.

Oh oh ...

If, in order to challenge the law, I must actually 'break' the law (and
not just 'appear' to break the law), then I will almost certainly lose in
court - and - worse yet - I won't have the resources to follow up on the
appeal.

So, I must find a way to challenge the law w/o breaking the law!

Is that possible?

[Danny D.]

A Michigan Attorney wrote:

> Judicial process can only result
> in a ruling that the law is (or is not) unconstitutional.

I'm ok with that.

I think it's an unreasonable law.

It's too badly written to be enforceable.

Assuming that is the case, and, given that I must fight it
via its constitutionality, which constitutional right should
I lead with?

[slide]

Stuart A. Bronstein wrote:

> slide <drya...@yahoo.com> wrote:

>> I'm truly curious because I am skeptical that such studies have
>> actually been conducted. Are you aware of any such published
>> studies where the method used was also published?

> This may be the study I remember hearing about:
>
> http://snipurl.com/265ks2tgoogle.com
>
> And here is one non-scientific made-for-tv test where they
> concluded that driving while talking is worse than driving under
> the influence:
>
> http://snipurl.com/265kse4
>
> If you check google you will find many more references to this
> issue.

THe first link was dead but as you say, I can find others, but none
which satisfy me about real world behavior. That is, it's one thing get
folks drunk and then run them through an obstacle course (or have them
talking while doing so) but another to actually say that out here in the
real world. folks with .08% BAC have more crashes per mile than those
who have less than that or who are at 0.

As to the TV test, there is no way that that would come out differently
because the testers and testees were aiming at a specific outcome and
they achieved it. Ditto a magazine 'test' I read about years ago (IIRC,
Car and Driver?) where testers gave testees more and more whiskey and
then ran them through the cones. Again, both sides were expecting the
outcome they got which proves nothing.

[Dick Adams]

Mike Anderson <prabb...@phx2-ss-5-bug608004-lb.cnet.com> wrote:

> Should have been http://snipurl.com/265ks2t
>
> One line in the article was rather telling: "One factor that may have
> contributed to the absence of accidents...In the current study,
> participants were well rested prior to the consumption of alcohol,
> potentially lowering the relative risk factors."
>
> I.e. they seemed to have expected much WORSE results from the drunk
> driving than what they did find. So I would tend to suspect the results
> overall right there.

They just didn't serve them enough alcohol.

>> And here is one non-scientific made-for-tv test where they
>> concluded that driving while talking is worse than driving under
>> the influence:
>>
>> http://snipurl.com/265kse4

> Mythbusters? It's a great show and very entertaining but a sample
> set of 2-3 people is NOT good science.

In defense of whomever wrote it, he did after all write
"non-scientific made-for-tv test".

Keep in mind that if I get to choose who is included in
a subject pool, I can either accept or reject any hypothesis
with statistical significance. It's called manipulation in
the selection and assignment of subjects and is the tool of
choice of people who want to control the behavior of others.

[Barry Gold]

Danny D. wrote:
> So the question really boils down to this:
>
> Q: What would the next step be after winning the court case in order to
> begin the process of getting the cell phone law revised or eliminated?

Write your State legislator(s). Write the governor. Use snail mail
(USPS), it carries more weight than an email or a phone call, because it
takes more effort to write, print, make an envelope, put a stamp on it,
and find a collection box to put it in.

Your problem is that the fact that a law is arbitrary is unlikely to get
it thrown out by a court. Courts have a long tradition of deferring to
the judgment of the legislature on purely political questions. Let us
say that the Lege wants to accomplish goal G, so they enact law L. Is
it possible that M would do the job better? Maybe, but the court won't
substitute it's judgment for the Lege's.

In most cases, all a law needs is to pass the "rational basis" test.
That is, the law serves a "legitimate government interest" and is
"rationally related" to that interest. The law doesn't have to
completely solve the problem, nor does it have to be the _best_ way of
ameliorating the problem. The law may impose a heavy cost on private
citizens (e.g., California regulations that make our gasoline about
20cents/gal more than anywhere else in the US), and it may be that if
the lege sat down and thought about it, they could accomplish the same
thing at a lesser cost.

None of these will matter to the court. The only question is whether it
serves a legitimate government interest.

If the courts were willing to say, "Hey, this is a lousy way of
accomplishing the goal, so we'll throw the law out," then judges would
have started throwing out most of the anti-drug laws. The costs that
they impose on society -- crime caused by the artificially high cost of
drugs, "turf" wars over who gets to sell drugs in a given area, etc. --
would surely cause a court to say, "this just costs too much for what it
accomplishes" and throw it out.

But they aren't. And overall, that's probably a good thing. People
scream enough now about "activist" judges when a law is thrown out
because it has no "rational basis" or (in the case of a law subject to a
higher level of scrutiny) doesn't pass "intermediate" or "strict
scrutiny". Imagine what people would say if judges started throwing out
any law that (in the judge's opinion) imposes too many costs on society
for what it accomplishes.

Nor is the fact that the law results in people being pulled over for
things that don't violate it sufficient. As long as the law has a
"rational basis" and the police only pull people over when they have
"probable cause" to believe the law is being violated, it's all hunky
dory with the courts.

Note that it would be different if the law affected your right to walk
down the street. That's because getting around is a "fundamental right"
and laws that limit it are subject to "strict scrutiny". But driing
isn't a "fundamental right". It's not a right at all. It's a privilege
that the state can restrict or even take away, as long as there's a
"rational basis" reason for doing so.

Put your lance away Alonso. Those are windmills, not giants.

[deadrat]

On 1/21/13 2:42 PM, Danny D. wrote:
> On Thu, 17 Jan 2013 12:55:51 -0500, Stuart A. Bronstein wrote:
>
>> you can go to a bank and point your finger from your pocket=20
>> as if you had a gun.=20
>
> That is NOT the same thing because the laws about robbing banks at=20
> gunpoint are not arbitrary like the cell-phone laws are.
>
> It 'would' be the same thing IF, for example, there was a law that you=20
> couldn't go into a bank with your hand in your pocket. But that law=20
> doesn't exist ... so the bank-robber analogy argument is spurious.
>
>
>>> The key question is about the PROCEDURE=20
>> =20
>> if you only pretend to use a phone, the court may well not let=20
>> you challenge the law, because you would be claiming that that
>> law doesn't apply in your situation.
>
> THIS IS A KEY POINT!
>
> I'm asking HOW the system works.=20
>
> Based on what you said, does the 'system' work this way?
> 0. The arbitrary & capricious law goes into effect

The law is not arbitrary. It says exactly what you must not do -- use a
cell phone when you're driving.

The law is not capricious. It targets behavior that may distract drivers.

> 1. I challenge this capriciousness by attacking the arbitrary nature of=20
> the law

Not a ground for disputing the law.

> 2. I win in court - thereby proving the law results in innocent people=20
> being detained merely for holding said object in their hands while drivin=
> g

If you win in court, it will be because the trier of fact decided that
you weren't using the cell phone in the sense that the law requires.
E.g., you might be able to convince judge or jury that you were
scratching your ear with the phone and not talking on it. That won't
make your ticketing illegitimate.

> 3. NOW WHAT HAPPENS?

Nothing. The fact that you were found not guilty has no effect on the law.

>
> How would I best use that successful defense to challenge the capricious=20
> nature of the cell phone laws?

It would be best if you understood that the outcome of your trial has no
effect on the legitimacy of the law.

[deadrat]

The breadth of a law's scope is inversely proportional to the scrutiny
by which the courts will examine the law. That is, the stricter
scrutiny, the more narrowly the law must be drawn. This law will be
examined under the "rational basis" test. The law stands if there is
any possible state of facts that gives the law a rational basis for
furthering a legitimate state interest.

[deadrat]

Danny D. wrote:
> A Michigan Attorney wrote:

>> Police are not required to know *in advance of a stop* that a law has
>> actually been broken. That would be expecting too much from them. That's
>> why the "reasonable and articulable suspicion" standard exists.

> This is the gist of the problem.
>
> It is 'my premise' that the law results in innocent people being pulled
> over merely for holding an object in their hands while driving. I can
> easily prove this is the case, even with my limited resources since all I
> have to do is hold an object in my hand while driving to get pulled over.
>
> It is harder for me (with my limited resources) to prove that the law is
> capricious in that there are plenty of distractions not covered (e.g.,
> dogs, radios, GPS, makeup, shaving, loud music, conversation, etc.) by
> the law which have an equal or greater effect on driving performance.

<snip/>

A brief time on the google turns up Railway Express Agency Inc v New
York 336US106 (1949), in which the Court upheld an "underinclusive"
distracted driving law. The law prohibited some advertising on vehicles
but not all such advertising.

[deadrat]

Sure. Ask for injunctive relief. That should stand just as much chance
of success as your current plan.

[Stuart A. Bronstein]

"Danny D." <dan...@notyahoo.com> wrote:
> Stuart A. Bronstein wrote:

>> you can go to a bank and point your finger from your pocket

>> as if you had a gun.

> That is NOT the same thing because the laws about robbing banks

> at gunpoint are not arbitrary like the cell-phone laws are.

Sorry, but cell phone laws may be a lot of things, but arbitrary is
not one of them. There is a rational basis for the laws, based on
scientific evidence.

Yes, there are other distractions to driving, and perhaps other
things should be dealt with as well. But that doesn't mean that
cell phone calls should not be limited while driving just because
other things aren't.

> I'm asking HOW the system works.
>

> Based on what you said, does the 'system' work this way?
> 0. The arbitrary & capricious law goes into effect
> 1. I challenge this capriciousness by attacking the arbitrary

> nature of the law

> 2. I win in court - thereby proving the law results in innocent

> people being detained merely for holding said object in their

> hands while drivin= g
> 3. NOW WHAT HAPPENS?

You have made some assumptions that are just not the case. First
you assume that the law is arbitrary - the courts won't think so,

Next, you are unlikely to win in court. If you tell the police
officer that you were holding your wallet to your ear, and if he
believes you, you won't get a ticket. If he doesn't believe you,
it is unlikely that a judge will believe you, either.

So what will happen is either that you don't get a ticket, or you
will get a ticket and have to pay for it. You will not set a
precident, and you will not make history.

___
Stu
http://DownToEarthLawyer.com

[Stuart A. Bronstein]

Mike Anderson <prabb...@phx2-ss-5-bug608004-lb.cnet.com> wrote:

> I FULLY agree with you (and others) that Danny is "expelling
> liquid bodily waste towards a air movement source" in this case
> but lets say some case DID go to court in regards to some law
> and resulted in the court deciding that particular law is
> unconstitutional (and it was upheld in appeals, etc.) Doesn't
> that have basically the same functional result as repeal, in
> that the law wouldn't be able to be enforced in the future?
> (although, if it remains on the books, people still may get
> charged and then have to fight it in court to win it as opposed
> to not even being charged with it to begin with.)

Well, when a court decides a law is unconstitutional, that decision
generally only applies to the area of that court's jurisdiction. If
it is a state supreme court, for example, it will only apply in that
state. If it is a federal district court, it will only apply in that
federal district.

If it gets appealed all the way to the US Supreme Court, and if that
court takes up the case (about a 1% chance of that), then whatever
that court rules will apply to the entire country.

___
Stu
http://DownToEarthLawyer.com

[Stuart A. Bronstein]

"Danny D." <dan...@notyahoo.com> wrote:

> So, I must find a way to challenge the law w/o breaking the law!
>
> Is that possible?

In theory you could sue for declaratory relief. Whether the courts
accept your suit is another issue - they won't unless you convince
them there is an actual controversy and it's not just an intellectual
exercise.

___
Stu
http://DownToEarthLawyer.com

[Mike Anderson]

Danny D. wrote:

> I'm already arguing that the law is too broad - and - your (accurate)
> assessment of the law confirms that belief beyond my wildest imagination!
>
> So, clearly (IMHO), the law is (vastly) too broad to be legally tenable.
>
> Isn't that enough of a reason to challenge it?

There's nothing that says a law can't cover a large area of actions as
long as you can TELL what it covers and what it doesn't.

I.e. a law that says "it can't be used for things we don't think it
should be used for" is overly vague in that it gives the ordinary person
no clue as to what uses may be OK and what wouldn't.

[Robert Bonomi]

short answer; "No."

If the trial court judge rules in the idiot's favor, that's the END of
the matter. Prosecution cannot appeal a 'not guilty' verdict, and
a traffic court verdict isn't binding on any court -- regardless of the
reason. Can't even cite it as 'precedent', unless the ruling is
'published' -- which almost *never* happens in traffic court cases.

For the idiot to get anywhere in attacking the law, he'd have to:
1) Actually commit a real violation.
2) Raise his "defense" at trial.
3) Have the trial judge reject that reasoning, and convict
4) Find a reason why the rejection was -not- a valid exercise of
"judicial discretion" by the trial judge.
5) Appeal on _that_ basis
6) Get the appeals court to find that the trial court -was- "in error".
7) Get the appeals court to rule his "defense" IS valid -- rather than
just 'remand' the case back to the trial court for reprocess ing.


His 'plan' fails at step 1.
If he revises his strategy to avoid that, he has to have step 3 go his way
Then he has the barrier at step 4.
*IF* he surmounts that, there are the major obstacles at step 6 & 7.

The proverbial snowball has a better chance. <grin>

[Robert Bonomi]

NOT in the court system. <grin>

To get something 'binding' in the court system it has to come from an
appellate court (at least). Prosecution cannot appeal a 'not guilty' verdict;
thus the only way to get _to_ the appellate court is for *you* to appeal
your conviction.

Your only =viable= ways to get the law changed are lobbying the legislature
or a petition drive to get a Citizen Initiative on the ballot.

[Robert Bonomi]

Danny D. <dan...@notyahoo.com> wrote:
> A Michigan Attorney wrote:

>> Police are not required to know *in advance of a stop* that a law has
>> actually been broken. That would be expecting too much from them. That's
>> why the "reasonable and articulable suspicion" standard exists.

> This is the gist of the problem.
>
> It is 'my premise' that the law results in innocent people being pulled
> over merely for holding an object in their hands while driving.

So what??

People get pulled over -frequently- when there is no actual violation.
The purpose of the stop is to determine _if_ there is, in fact, a violation.

I, personally, was pulled over more than a dozen times in less than one
month. The cops -did- have cause to 'suspect' a violation, although,
in fact, there was =no= actual violation that I could cited for.

To this day I do _not_ believe there was anything wrong with the law that
I was stopped for a possible violation of, or with the actions of the
officers making the stops.

[Danny D.]

Mike Anderson wrote:

> lets say some case DID go to court in regards to some law and resulted
> in the court deciding that particular law is unconstitutional (and it
> was upheld in appeals, etc.) Doesn't that have basically the same
> functional result as repeal, in that the law wouldn't be able to be
> enforced in the future?

Is the law being too broad a constitutional case?

That is, I can relatively easily prove that anyone holding any object
whatsoever in their hands WILL be pulled over if an officer sees them
doing so.

Would that be the correct approach to most efficiently getting the law
struck or rewritten?

[Danny D.]

Mike Anderson wrote:

> But most of those laws simply say "use of a hand-held wireless device"
> and thus ANY type of use would be illegal.

Thanks to you (and others), I now am appraised of that situation.

So, the approach, by necessity, to challenge the law, must NOT use an
actual hand held wireless device, working or otherwise.

I do agree with you.

Luckily, the originally envisioned approach can easily be modified to
employ a wallet, a ham sandwich, or any other similarly sized object
without affecting the end result.

a. The wallet-in-the-hand will result in detainment
b. The case will win in court (there can not possibly be proof otherwise)
c. The question then - is HOW to USE THAT court win to challenge the law

[Seth]

slide <drya...@yahoo.com> wrote:

>I hear this a good deal but is it proved? That is, has there been a
>study or more using valid method, which shows that incidents per km
>increase if one drives drunk or using a cell phone? One may make a
>'stands to reason' argument but then, one could also make a stands to

>reason argument about dogs in the front seat which, AFAIK, is legal
>everywhere.

There have been studies about "ability to pay attention" (using
simulators) where the subjects are drunk/texting/talking on
cellphones/etc.

Seth

[Seth]

Ripple Whine <Rip...@is.invalid> wrote:

>I'm sure that there are PLENTY of distractions while driving, e.g., dogs,
>hot coffee, loud music, applying makeup, shaving, fiddling with the radio
>or GPS, etc. ... yet ... you don't see laws against them.
>
>It's a capricious law - and as such - is unsustainable.

That claim would have more credibility if it applied to a lot more of
the capricious laws made over the past few centuries that were
sustained.

>Furthermore, the law is arbitrary and unenforceable in that smart phones
>have hundreds of uses, only two of which are forbidden - yet the flawed
>law makes no mention of how an officer is to tell the difference at the
>time of the unlawful detention.

The law isn't required to specify how an officer is to determine on
the spot whether or not it was violated. The law specifies behavior
that is prohibited (or required).

Detention is not unlawful if it's based on reasonable and articulable
suspicion that a law was violated.

Seth

[Seth]

Danny D. <dan...@notyahoo.com> wrote:

>It is 'my premise' that the law results in innocent people being pulled
>over merely for holding an object in their hands while driving. I can
>easily prove this is the case, even with my limited resources since all I
>have to do is hold an object in my hand while driving to get pulled over.

If the law results in guilty people plus those intentionally trying to
appear to be violating it being pulled over, then I see no problem
with it.

>It is harder for me (with my limited resources) to prove that the law is
>capricious in that there are plenty of distractions not covered (e.g.,
>dogs, radios, GPS, makeup, shaving, loud music, conversation, etc.) by
>the law which have an equal or greater effect on driving performance.

There is no requirement that laws cover all distractions if they cover
any. In fact, the Supreme Court has stated that it will give great
deference to Congress's opinions. Similarly, it is quite reasonable
(in a legal sense) for a legislature to decide that some distractions
ought to be illegal while ignoring other distractions.

>So, I wished to attack the 'easy' stuff first.

That's exactly what the legislature did.

>I'm sure I can provoke the desired response merely by holding my wallet
>to my ear and, with the proper witnesses and evidence, I'm just as sure
>I'll win in court ...

You'll perhaps be found Not Guilty and required to pay costs anyway.

>So the question really boils down to this:
>
>Q: What would the next step be after winning the court case in order to
>begin the process of getting the cell phone law revised or eliminated?

The first step ought to be getting in touch with your legislator and
attempting to convince him/her that the law should be changed. The
court case won't help you at all.

Seth

[Seth]

Zen <z...@is.invalid> wrote:

>The law singles out a "wireless telephone", yet a wireless radio or
>wireless GPS device or even a wireless tv is not singled out.

So?

>And, as eloquently already pointed out, the law is too broad in that the
>driver could be using the "wireless telephone" to swat flies, and that
>would be a punishable offense.
>
>Did the framers really intend the law to be so capriciously interpreted?

I doubt the framers intended to require legislatures to be perfect in
their writing of laws. Nor is the law being capriciously interpreted,
it was perhaps (I'd argue not) capriciously written, and is being
interpreted as written.

Seth

[Danny D.]

On Sat, 26 Jan 2013 21:41:31 -0500, Robert Bonomi wrote:

> a traffic court verdict isn't binding on any court, regardless of

> reason. Can't even cite it as 'precedent', unless the ruling is
> 'published' -- which almost *never* happens in traffic court cases.

I was unaware that traffic court verdicts aren't usable as precedent.

> His 'plan' fails at step 1.
> If he revises his strategy to avoid that, he has to have step 3 go his
> way Then he has the barrier at step 4.
> *IF* he surmounts that, there are the major obstacles at step 6 & 7.

Yikes. I see now, that my desired approach, is fundamentally flawed.

With all this advice, I'm going to rethink my approach, taking into
account what you and everyone else has advised.

Thanks!

[Seth]

Danny D. <dan...@notyahoo.com> wrote:

> Is the law being too broad a constitutional case?

No.

> That is, I can relatively easily prove that anyone holding any object
> whatsoever in their hands WILL be pulled over if an officer sees them
> doing so.

I doubt it, unless you have many examples of people being pulled over
for eating, drinking water, putting chewing gum in their mouths, and
applying makeup.

Seth

[Seth]

Danny D. <dan...@notyahoo.com> wrote:

>So, the approach, by necessity, to challenge the law, must NOT use an
>actual hand held wireless device, working or otherwise.
>
>I do agree with you.
>
>Luckily, the originally envisioned approach can easily be modified to
>employ a wallet, a ham sandwich, or any other similarly sized object
>without affecting the end result.
>
>a. The wallet-in-the-hand will result in detainment
>b. The case will win in court (there can not possibly be proof otherwise)
>c. The question then - is HOW to USE THAT court win to challenge the law

Consider this parallel:

It is illegal to carry a gun without a permit.

A local mystery bookstore gives out bookmarks that are shaped like a
gun (a piece of cardboard with the store's name and address).

I walk around with a bookmark sticking out of my pocket. A police
officer sees that and stops me.

Just how can I use this to challenge the law about carrying guns?

Seth

[Danny D.]

Robert Bonomi wrote:

> To get something 'binding' in the court system it has to come from an
> appellate court (at least). Prosecution cannot appeal a 'not guilty'
> verdict; thus the only way to get _to_ the appellate court is for
> *you* to appeal your conviction.

Ouch.

This is a fundamental weakness in my contemplated approach.

I must rethink.

Thanks.

[deadrat]

It will probably have to be your estate that makes the challenge.

[JSmith]

"Danny D." <dan...@notyahoo.com> wrote:

> Yikes. I see now, that my desired approach, is fundamentally flawed.
>
> With all this advice, I'm going to rethink my approach, taking into
> account what you and everyone else has advised.

Here's an approach - one I've seen many people claim they are going to
do, but I've never actually seen in practice.

Get lots of people (you'll need hundreds, if not thousands) who agree
with you to arrange to get charged and taken to court. Even if they
are all quickly found not guilty, the work will overload the system,
and will certainly come to the attention of the legislators. (Some
strategizing to maximize the disruption and media attention would be
best.)

Of course this requires finding enough people who agree with you, and
are willing to act. That's the hard part.

[Robert Bonomi]

Of course there is still the 'minor' problem of getting all those
people -charged- for the (non-) violations.

Odds are, they'll get stopped on suspicion of a violation, a determination
that there was not a violation, and it fizzles at that point.

BTW, that is a tactic that can work both ways. They don't have to let you
sign the ticket and go on your way -- you can end up in custody, awaiting
the pleasure of a Judge. Not fun. Finding thousands willing to risk
_that_ ups the barrier to participation _considerably_.

[JSmith]

Moderator Note:
Starting Sunday, 10 Feb 2013, posts similar in length will be rejected
for excessive quotation.
======

bon...@host122.r-bonomi.com (Robert Bonomi) wrote:

> JSmith =A0<ppost...@sympatico.ca> wrote:
> > "Danny D." <dan...@notyahoo.com> wrote:

> >> Yikes. I see now, that my desired approach, is fundamentally flawed.
>
> >> With all this advice, I'm going to rethink my approach, taking into
> >> account what you and everyone else has advised.

> >Here's an approach - one I've seen many people claim they are going to
> >do, but I've never actually seen in practice.
>
> >Get lots of people (you'll need hundreds, if not thousands) who agree
> >with you to arrange to get charged and taken to court. Even if they
> >are all quickly found not guilty, the work will overload the system,
> >and will certainly come to the attention of the legislators. (Some
> >strategizing to maximize the disruption and media attention would be
> >best.)
>
> >Of course this requires finding enough people who agree with you, and
> >are willing to act. That's the hard part.
>
> Of course there is still the 'minor' problem of getting all those
> people -charged- for the (non-) violations.
>

> Odds are, they'll get stopped on suspicion of a violation, a determinatio=

n
> that there was not a violation, and it fizzles at that point.
>

> BTW, that is a tactic that can work both ways. =A0They don't have to let =

you
> sign the ticket and go on your way -- you can end up in custody, awaiting

> the pleasure of a Judge. =A0Not fun. =A0Finding thousands willing to risk

> _that_ ups the barrier to participation _considerably_.

Yup. That's why I said it would be hard. (I didn't say they should
commit a non-violation - committing an actual violation would be more
effective.)

Actually, regardless of whether all these people actually end up in
court or not, the legislators would probably take notice. If a
sufficient number of voters are willing to involve themselves in
significant activities to overturn a law, it does tend to get their
attention. The actual legal results would probably not be that
important (except to any who do get charged, of course - presumably
they consider the consequences worthwhile.)

[Barry Gold]

Danny D. wrote:
> Yikes. I see now, that my desired approach, is fundamentally flawed.
>
> With all this advice, I'm going to rethink my approach, taking into
> account what you and everyone else has advised.

Is that including the advice you have received from almost everybody
here that your whole idea has less chance than a snowball in hell?

Simply stated: the legislature can't make _every_ bad idea a crime (nor
should it). So the lege can pick and choose _which_ behaviors it can
prohibit(*). Just because you (or the judge) thinks that behavior B is
worse than behavior A, does not make a law that bans A but not B
unconstitutional.

So, just because drinking coffee, eating a hamburger, talking with
passengers, etc. are distracting, doesn't mean that the lege cannot ban
using a cell phone. Nor that the lege _must_ ban those behaviors before
it can ban using cell phones.

Now... you _can_ try to challenge the law "as applied". That is, if you
can establish that the police are enforcing the law in a way that
violates your constitutional rights, you can have your conviction
overturned even if the law as written is facially constitutional.
Examples would be if the police were using the law to disadvantage
members of a particular race or ethnic group, or if a law that allows
discretion by the government is being misapplied to violate somebody's
First Amendment rights. (e.g., Finley vs. National Endowment for the Arts).

But _intentionally_ violating the law -- or setting up a situation where
you _intend_ that a cop will reasonably think that you are violating it
-- will get you exactly _nowhere_ in an as-applied challenge.

If you want to get anywhere with this, you need to consult a lawyer. A
real lawyer, one who will take the time to listen to your concerns and
see if he can work out a strategy that _will_ work. Otherwise, you are
wasting your time and money -- and the court's time. And judges don't
like having their time wasted. You could end up paying sanctions for a
frivolous filing.

If you are determined to go forward, you either need to be prepared to
spend substantial amounts of your own money (multiples of $10,000) or
find an organization that will provide legal help for free or at
substantially reduced costs -- in effect, subsidizing your challenge
because it goes along with their own agenda.

(*) Subject to certain limits: not infringing on rights guaranteed by
the constitution, sufficiently well defined that a person can know
whether or not he is violating the law, must have a "rational basis".
If you're unfamiliar with these ideas, look up the following in Wikipedia:
Unconstitutional Vagueness
Rational Basis Review
Constitutionality
As-applied challenge

[D.F. Manno]

"Danny D." <dan...@notyahoo.com> wrote:

> I seek advice to prepare, ahead of time, to fight a motor vehicle
> violation case that I intend to provoke to prove a point.
>
> My point (which you may or may not agree with) is to prove that the
> current California cell-phone restriction rules are too generic, and
> therefore consist of an unreasonable search & seizure.
>
> Suffice to say any smart phone today can be used in a vehicle for quite a
> few things, only one of which is telephone calls - yet - simply holding
> one in your hands while driving - is sufficient in California to get you
> pulled over and cited.
>
> Given I strongly feel that is an unreasonable law, I would like to
> prepare to fight it.

We now have a ruling from a three-judge appellate panel of the
California Superior Court. You can be cited from "simply holding [a cell
phone] in your hands while driving." The plaintiff in the case was
checking a maps app while stuck in traffic.

<http://abcnews.go.com/US/wireStory/calif-court-motorist-hand-held-map-18
909471#.UWWRcnAeNuJ> or <http://tinyurl.com/bro7d5o>

--
D.F. Manno | dfm...@mail.com
GOP delenda est!

[micky]

On 8 Feb 2013 14:57:24 -0500, JSmith <ppos...@sympatico.ca> wrote:

>"Danny D." <dan...@notyahoo.com> wrote:
>
>> Yikes. I see now, that my desired approach, is fundamentally flawed.
>>
>> With all this advice, I'm going to rethink my approach, taking into
>> account what you and everyone else has advised.
>
>Here's an approach - one I've seen many people claim they are going to
>do, but I've never actually seen in practice.

Maybe not in Canada; or you may be too young.

>Get lots of people (you'll need hundreds, if not thousands) who agree
>with you to arrange to get charged and taken to court. Even if they
>are all quickly found not guilty, the work will overload the system,

But this was definitely the strategy of part of the Civil Rights
Movement in the US. "Fill the jails". And Southern police on some
occasions arrested hundreds of people at a time.

>and will certainly come to the attention of the legislators. (Some

IIRC, the state legislators for the most part didn't do anything, but
the courts and the Congress did. it was one part of a multi-part
strategy.

>strategizing to maximize the disruption and media attention would be
>best.)
>
>Of course this requires finding enough people who agree with you, and
>are willing to act. That's the hard part.

If bad cell phone laws were as bad as segregation laws and voter
suppression laws, the OP would be in better shape. But I don't think
anyone thinks so, even the OP.


--
I think you can tell, but just to be sure:
I am not a lawyer.