People v. Nelson
132 Cal. Rptr. 3d 856
Cal. Ct. App.2011Background
- Defendant Nelson was cited for violating Vehicle Code section 23123 by using a handheld wireless phone while his car was on public roadways and paused at a red light in Richmond.
- The traffic officer observed Nelson dialing and listening with the phone in his ear, then green light allowed him to proceed after removing the phone.
- Nelson argued he was not driving while stopped, relying on Mercer v. DMV, which required volitional movement for ‘drive’ in the DUI context.
- The traffic court found Nelson guilty and the appellate division certified the matter for review to determine whether ‘drive’ requires contemporaneous movement during a fleeting pause.
- The appellate court evaluated text, legislative history, related statutes, and public safety considerations to interpret section 23123(a).
- The court ultimately held that section 23123(a) applies to Nelson’s conduct, finding substantial evidence of a violation during a fleeting pause while driving.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does 23123(a) apply to handheld phone use during a fleeting pause while driving? | Nelson (Mercer) argues no, since no volitional movement occurred. | Nelson contends Mercer controls; movement is required at all times. | Yes, 23123(a) applies during fleeting pauses while driving. |
| Should legislative history broaden drive/while driving beyond Mercer’s volitional movement | Legislative history supports broader interpretation focusing on operation and safety. | Mercer restricts drive to movement; history should not override text. | Legislative history supports broader interpretation; statute applies to Nelson. |
Key Cases Cited
- Mercer v. Department of Motor Vehicles, 53 Cal.3d 753 (1991) (drive requires volitional movement; DUI context)
- MacIsaac v. Waste Management Collection & Recycling, Inc., 134 Cal.App.4th 1076 (2005) (interpretive framework: language, history, consequences)
- People v. Letner and Tobin, 50 Cal.4th 99 (2010) (driving regulation and vehicle regulation context )
- Yeroushalmi v. Miramar Sheraton, 88 Cal.App.4th 748 (2001) (statutory interpretation; interpretation of terms in statutes)