Is it illegal to hold my phone at a red light in California?

Yes, if you are holding it and using it. California bars driving while holding and operating a handheld phone unless it is used hands-free, and a California Court of Appeal has held that a driver who pauses briefly at a red light is still driving under the state’s hands-free calling law. Neither statute has an exception for waiting at a light.

Two rules, not one

Vehicle Code section 23123(a) bars driving while using a wireless telephone unless it is specifically designed and configured for hands-free listening and talking, and is used that way. Vehicle Code section 23123.5(a) goes further: it bars driving while holding and operating a handheld wireless telephone or an electronic wireless communications device, which the statute defines to include a handheld device or laptop computer with mobile data access (23123.5(f)), unless the device is designed and configured for voice-operated, hands-free operation and is used that way. Together, the two rules mean a phone call has to be hands-free, and holding a phone or similar device while operating it by hand, for a call, a text, a map, or anything else, is its own separate violation.

The mount exception, and its real limits

Section 23123.5(c) lets you operate a device by hand only when two conditions are both met. First, the device has to be mounted in an allowed spot: on the windshield in the same place a portable GPS may be mounted under Vehicle Code section 26708(b)(12), meaning a seven-inch square in the lower corner of the windshield farthest from you or a five-inch square in the lower corner nearest you and outside the airbag deployment zone, or on the dashboard or center console in a way that does not hinder your view of the road. Second, your hand can do no more than activate or deactivate a feature or function with a single swipe or tap of your finger. Typing out a message takes more than that, and a phone held in your hand is not mounted, so the exception covers neither.

A red light does not pause the rule

In People v. Nelson (2011) 200 Cal.App.4th 1083, an officer saw a driver dialing a handheld phone and holding it to his ear while stopped at a red light, and cited him under section 23123(a). The driver argued he was not “driving” because his car was not moving. The Court of Appeal upheld the conviction, concluding that the Legislature meant the section to cover people driving on public roads who “may pause momentarily while doing so in order to comply with the rules of the road.” The court explained that the California Supreme Court’s DUI definition of driving, which requires movement, came from a case about a car legally parked at the curb, while this driver drove up to the light and on through it.

Two limits matter. First, the court decided only a brief pause at a light, not longer stops such as waiting hours behind a major accident, and it noted that the statute does not stop a driver from pulling over and parking to use a handheld phone. Second, Nelson interpreted section 23123. Section 23123.5 uses the same “drive a motor vehicle” wording, but the court did not rule on it.

Exceptions, and who gets a stricter rule

Section 23123 does not apply to using a wireless telephone for emergency purposes, such as an emergency call to a law enforcement agency, health care provider, or fire department (23123(c)), to an emergency services professional using one while operating an authorized emergency vehicle in the course of duty (23123(d)), or to driving on private property (23123(f)). The text of section 23123.5 has only two exceptions: manufacturer-installed systems embedded in the vehicle (23123.5(b)) and the same emergency services professional exception (23123.5(e)). It does not repeat the emergency-purposes or private-property exceptions.

Drivers under 18 face a stricter rule. They may not drive while using a wireless telephone or an electronic wireless communications device at all, even with a hands-free device, except for emergency purposes (Vehicle Code section 23124).

The fine and points

Both sections make a violation an infraction with a base fine of $20 for a first offense and $50 for each subsequent offense (23123(b); 23123.5(d)). Those are base fines only. State law adds a state penalty to fines for Vehicle Code offenses (Penal Code section 1464), so the amount due is usually higher than the base fine.

A first conviction does not add a violation point to your driving record. A point is given only for a conviction under section 23123(a), 23123.5(a), or 23124(b) that occurs within 36 months of a prior conviction for the same offense (Vehicle Code section 12810.3).

What to check about your own citation

• Was the phone in your hand, or already mounted, when the officer saw you use it?
• If it was mounted, was it in an allowed spot: the correct lower corner of the windshield, or the dashboard or center console without blocking your view?
• Did your hand do more than a single tap or swipe to turn a feature on or off?
• Was the car paused in traffic, or pulled over and parked?
• Does an exception fit the section you were cited under? The emergency-purposes and private-property exceptions appear only in section 23123.
• Is this a first conviction, or a repeat of the same offense within 36 months?

A citation under either section is an infraction, not a misdemeanor. If you were cited and believe your setup or hand movement fit the mount exception, the Law Offices of David S. Chesley can review the citation and the circumstances of the stop. Call (800) 755-5174 to discuss what happened.