eHam

eHam Forums => Mobile Ham => Topic started by: K6EK on March 12, 2014, 01:01:03 PM



Title: Cited for CVC 23123 ? CHP Improperly Applying The Law
Post by: K6EK on March 12, 2014, 01:01:03 PM
An associate on the job was cited for a violation of CVC 23123. He was using his company radio. To my reading this applies to telephone devices, not radios. Does anyone have current knowledge of this area ? Sounds like the CHP is legislating again.

Ken
K6EK


Title: RE: Cited for CVC 23123 ? CHP Improperly Applying The Law
Post by: KI6LZ on March 12, 2014, 01:11:03 PM
Code says "wireless telephone". Think they screwed up. Oh well, I'm sure his appeal will win but unfortunately he has to waste his time.


Title: RE: Cited for CVC 23123 ? CHP Improperly Applying The Law
Post by: KI6LZ on March 12, 2014, 01:17:18 PM
Not sure if he can contest by mail or has to appear in traffic court. Either way, take photo of radio and car, have copy of business license, keep notes on what was discussed, etc. Look at citation and verify if cellphone or radio was mentioned rather than just the CVC 23123 violation.


Title: RE: Cited for CVC 23123 ? CHP Improperly Applying The Law
Post by: KE4DRN on March 13, 2014, 05:39:05 PM
Hi

A letter from the radio manufacturer, signed by one of their techs,
to verify that the radio is in fact a radio and not a cellular device.

73 james


Title: RE: Cited for CVC 23123 ? CHP Improperly Applying The Law
Post by: K6CPO on March 15, 2014, 06:26:41 PM
I seem to recollect that when California's hands-free was first enacted the California Highway Patrol sent out a letter specifically saying the statue DID NOT apply to amateur radios with a hand-held microphone.  By extension this should apply to a business band; radio as well...

Unfortunately, I can't find the letter online.


Title: RE: Cited for CVC 23123 ? CHP Improperly Applying The Law
Post by: G8YMW on March 16, 2014, 04:21:52 AM
I know this isn't Amateur Rasio but would the ARRL have any info?


Title: RE: Cited for CVC 23123 ? CHP Improperly Applying The Law
Post by: K6JH on March 19, 2014, 11:51:03 AM
I know this isn't Amateur Rasio but would the ARRL have any info?

Yes, apparently the Feds have passed "distracted driving" laws, and the NHTSA is confused as to the proper definitions of how to apply the rules. The ARRL has chimed in:
http://www.arrl.org/files/file/QST/This%20Month%20in%20QST/November%202013/It%20Seems%20to%20US.pdf (http://www.arrl.org/files/file/QST/This%20Month%20in%20QST/November%202013/It%20Seems%20to%20US.pdf)

If you look up MAP-21 information
http://www.distraction.gov/download/research-pdf/DD_NOFA.pdf (http://www.distraction.gov/download/research-pdf/DD_NOFA.pdf)
it references a section of 47 CFR 332(c)(7)(C)(i) where the banned things are defined:

(C) Definitions
For purposes of this paragraph—
(i) the term “personal wireless services” means commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services;
(ii) the term “personal wireless service facilities” means facilities for the provision of personal wireless services; and
(iii) the term “unlicensed wireless service” means the offering of telecommunications services using duly authorized devices which do not require individual licenses, but does not mean the provision of direct-to-home satellite services (as defined in section 303 (v) of this title).


Where "commercial mobile service" means interconnected to the phone network.

I can't see how that applies to a Licensed non-commercial radio service (Amateur Radio), or for that matter conventional commercial 2-way radios. It's just a case of a bunch of bureaucrats not understanding the limitations of their own rules, and trying to broaden the intent of the law. With a lot of innocents caught up in their web.


Title: RE: Cited for CVC 23123 ? CHP Improperly Applying The Law
Post by: K1DA on March 20, 2014, 09:57:52 AM
Does that little bureaucrat nightmare inculde autopatch repeaters? 


Title: RE: Cited for CVC 23123 ? CHP Improperly Applying The Law
Post by: K7RBW on March 21, 2014, 06:58:16 AM
Does that little bureaucrat nightmare inculde autopatch repeaters? 
Depends on your lawyer :)


Title: RE: Cited for CVC 23123 ? CHP Improperly Applying The Law
Post by: K6JH on March 21, 2014, 02:30:00 PM
Does that little bureaucrat nightmare inculde autopatch repeaters? 

People still use autopatches???  :D


Title: RE: Cited for CVC 23123 ? CHP Improperly Applying The Law
Post by: KD4LLA on March 22, 2014, 11:41:31 AM
Does that little bureaucrat nightmare inculde autopatch repeaters? 
Still using a hand-held microphone aren't you?

Besides, why would anyone use an autopatch when everyone age 12 and up has a cellphone?

Mike


Title: RE: Cited for CVC 23123 ? CHP Improperly Applying The Law
Post by: KF7CG on March 24, 2014, 09:51:56 AM
Maybe not where you live, but in certain parts of the country a good 2 Meter Rig to an autopatch repeaters is more reliable and generally has better coverage. Different tools for different jobs. Cell phones didn't replace the autopatch, they just provided another tool and one tha was available to the general public.

What with all the hoopla about distracted, walkers, drivers, whatever else you care to insert; cell phones may soon be banned, restricted, and/or licensed to the point of unusability.

KF7CG


Title: RE: Cited for CVC 23123 ? CHP Improperly Applying The Law
Post by: G7DIE on March 27, 2014, 04:13:57 PM
Not sure how it works in the states, but a friend of mine fell foul of the law which bans use of mobile phones, he was using his ham rig and the policeman didn't know PTT devices were excluded from the legislation. My friend, armed with the relevant legislation and exclusion, appeared in court to contest the charge, when it was proven he actions weren't in breach of that particular piece of legislation, the charge was changed to driving with undue care and attention, which he lost!


Title: RE: Cited for CVC 23123 ? CHP Improperly Applying The Law
Post by: KI6LZ on March 27, 2014, 04:17:30 PM
Wow, what a judicial system you got there.


Title: RE: Cited for CVC 23123 ? CHP Improperly Applying The Law
Post by: K6JH on March 27, 2014, 07:03:59 PM
.
.
.
the charge was changed to driving with undue care and attention, which he lost!

Guess it's time to rig up a footswitch for PTT, and a hidden mic. Is it a crime to appear to be talking to yourself?



Title: RE: Cited for CVC 23123 ? CHP Improperly Applying The Law
Post by: AC9FM on April 17, 2014, 01:51:37 PM
It depends on if you are distracting yourself  ???


Title: RE: Cited for CVC 23123 ? CHP Improperly Applying The Law
Post by: K5LXP on April 18, 2014, 05:52:46 AM

Along the lines of this topic, are there any states/municipalities that prohibit talking on a non-cellular/2-way radio other than through general distracted driving regulation?


Mark K5LXP
Albuquerque, NM


Title: RE: Cited for CVC 23123 ? CHP Improperly Applying The Law
Post by: K6LCS on April 19, 2014, 08:17:03 AM
From Amateur Radio Newsline last week ... this is another "topic" that continues to need us to properly educate others ...

RADIO LAW: RIVERSIDE POLICE GET SCHOOLED ON HAM RADIO VS DISTRACTED DRIVING

Due to the actions of Clint Bradford K6LCS, Riverside, California Police Department will be reviewing the state's distracted driving rule - known as Vehicle Code section 23123 - with all field officers. This, to explain how mobile amateur radio communications with an attached handheld microphone are not targets of this law.

According to Bradford, it all began when he wound up in what he describes as a discussion with a motorcycle officer on the morning of April 8th. The officer asked Bradford he was doing. K6LCS explained to him that he was talking on an amateur radio. At that point the officer warned him that he better not as he was risking getting an expensive ticket.

Instead of continuing the conversation Bradford spoke directly with both Riverside Police Department’s Watch Commander and its Traffic Supervisor. In turn, the Traffic Supervisor promised to discuss this matter with all officers at roll call on what the intent of the states distracted driving law is.

Bradford noted that he and the Riverside Police were both on the same wavelength when it came to what amateur radio was all about. Also that operating a mobile amateur radio station with an attached microphone is not a violation of the California Vehicle Code. (K6LCS)



Title: RE: Cited for CVC 23123 ? CHP Improperly Applying The Law
Post by: HFCRUSR on April 19, 2014, 08:27:28 AM
Being the cop let you go with just a verbal, it seems to me he already knew he couldn't site you anyway, otherwise he'd have cited you. He just wanted to razzmatazz ya I think.


Title: RE: Cited for CVC 23123 ? CHP Improperly Applying The Law
Post by: KQ6Q on April 21, 2014, 04:50:53 PM
If the 'company radio' was one of these Verizon cell phones with Push to talk direct communications, the CHP officer rightly called it a cell phone. Even if the cell phone feature is disabled so it isn't full duplex, it still looks and needs to be held up to the ear to listen and to Push to Talk, and is just as distracting.


Title: RE: Cited for CVC 23123 ? CHP Improperly Applying The Law
Post by: K6CPO on April 22, 2014, 02:41:47 PM
If the 'company radio' was one of these Verizon cell phones with Push to talk direct communications, the CHP officer rightly called it a cell phone. Even if the cell phone feature is disabled so it isn't full duplex, it still looks and needs to be held up to the ear to listen and to Push to Talk, and is just as distracting.
\

When the California law was first enacted, push-to-talk cell phones, like those marketed by Nokia, were exempted.  The law has since been amended to include PTT cell phones.  However, it still says "cell phones" and says nothing about two-way radios with hand-held PTT microphones.


Title: RE: Cited for CVC 23123 ? CHP Improperly Applying The Law
Post by: WA7SGS on April 29, 2014, 06:50:27 PM
You are legally entitled to sue in small claims court so sue the officer who issued you the improper cite if you win that case in court for your costs in time, driving and such.  Small claims court does not require the use of a lawyer.  The judgments are rendered on the basis of what is fair and equitable.  If a state employee's incompetence costs you I see no reason why you should not be able to collect back from them for your expenses.

If the officer is "too busy" to show up for the small claims court case, you will win by default and the judgment is good for several years.  If there is no payment after you win either at trial or by declaratory judgment, you send a demand for payment letter.  You can then call in the party you sued into court for an examination of assets hearing if they do not pay.  Failure to show up for the hearing will result in a contempt of court citation to the non-showing party.  If they do show up they will have to explain to the judge why payment has not been tendered.  You can add to the bill all costs associated with the small claims suit including court fees, service of papers fees and registered/certified mail fees so be sure to keep a tab going so you get the full amount due you.

Freedom is not free.  You have to fight for your rights as history well shows.  It is your patriotic duty as a citizen who loves liberty to resist petty tyrannies as well as the major ones.  

Rick


Title: RE: Cited for CVC 23123 ? CHP Improperly Applying The Law
Post by: AC9FM on April 30, 2014, 04:11:25 AM
"Freedom is not free.  You have to fight for your rights as history well shows.  It is your patriotic duty as a citizen who loves liberty to resist petty tyrannies as well as the major ones. "

Well said Rick !!!!!!!!!!!!!!!!


Title: RE: Cited for CVC 23123 ? CHP Improperly Applying The Law
Post by: KA4LFP on May 08, 2014, 06:24:04 PM
I don't think I'd want to drive 36 in a 35 in a town after I'd sued an officer for doing what he believed to be his job.

He and his fellow officers might not ever make something up, but you'd certainly lose all "easy-going attitude" from officers who see your car regularly and allow you to illegally drive 5-9 mph over the speed limit, or not come to an absolute, total, full stop and look both ways at _every_ stopsign at _all_ hours of the day.

Sooner or later, you'd get a ticket you DID deserve, which otherwise you might not have.

I have an officer who lives in my neighborhood, who has seen me do a small rolling stop at the stopsign in my neighborhood from time to time, or seen me drive 26mph in our 25mph.
I know if I called up his boss and raised all kinds of shiet and made a big noise,
he'd probably not be so accommodating in future if he saw me go by doing 27 in a 25...
That officer would start to do his job down to the last tinest LEGAL detail he could think of, and
the 'live and let live' would go right out his window....

They don't appreciate having their chain yanked any more than you would appreciate the nasty customer who
gave you and your boss sheer !#$!! just for having a price tag marked wrong and over charging you by accident.

Sometimes life isn't so complicated and  it isnt' worth an in-your-face angry attitude towards
someone who made a mistake and thought they were right.

There are things in this world that are true tyrannies, (like certain SCOTUS decisions)
and other things that I personally wouldn't get so wound up about.


You are legally entitled to sue in small claims court so sue the officer who issued you the improper cite if you win that case in court for your costs in time, driving and such.  Small claims court does not require the use of a lawyer.  The judgments are rendered on the basis of what is fair and equitable.  If a state employee's incompetence costs you I see no reason why you should not be able to collect back from them for your expenses.

If the officer is "too busy" to show up for the small claims court case, you will win by default and the judgment is good for several years.  If there is no payment after you win either at trial or by declaratory judgment, you send a demand for payment letter.  You can then call in the party you sued into court for an examination of assets hearing if they do not pay.  Failure to show up for the hearing will result in a contempt of court citation to the non-showing party.  If they do show up they will have to explain to the judge why payment has not been tendered.  You can add to the bill all costs associated with the small claims suit including court fees, service of papers fees and registered/certified mail fees so be sure to keep a tab going so you get the full amount due you.

Freedom is not free.  You have to fight for your rights as history well shows.  It is your patriotic duty as a citizen who loves liberty to resist petty tyrannies as well as the major ones.  

Rick


Title: RE: Cited for CVC 23123 ? CHP Improperly Applying The Law
Post by: WA7SGS on May 09, 2014, 09:12:54 AM
I don't think I'd want to drive 36 in a 35 in a town after I'd sued an officer for doing what he believed to be his job.

He and his fellow officers might not ever make something up, but you'd certainly lose all "easy-going attitude" from officers who see your car regularly and allow you to illegally drive 5-9 mph over the speed limit, or not come to an absolute, total, full stop and look both ways at _every_ stopsign at _all_ hours of the day.

Sooner or later, you'd get a ticket you DID deserve, which otherwise you might not have.

I have an officer who lives in my neighborhood, who has seen me do a small rolling stop at the stopsign in my neighborhood from time to time, or seen me drive 26mph in our 25mph.
I know if I called up his boss and raised all kinds of shiet and made a big noise,
he'd probably not be so accommodating in future if he saw me go by doing 27 in a 25...
That officer would start to do his job down to the last tinest LEGAL detail he could think of, and
the 'live and let live' would go right out his window....

They don't appreciate having their chain yanked any more than you would appreciate the nasty customer who
gave you and your boss sheer !#$!! just for having a price tag marked wrong and over charging you by accident.

Sometimes life isn't so complicated and  it isnt' worth an in-your-face angry attitude towards
someone who made a mistake and thought they were right.

There are things in this world that are true tyrannies, (like certain SCOTUS decisions)
and other things that I personally wouldn't get so wound up about.


You are legally entitled to sue in small claims court so sue the officer who issued you the improper cite if you win that case in court for your costs in time, driving and such.  Small claims court does not require the use of a lawyer.  The judgments are rendered on the basis of what is fair and equitable.  If a state employee's incompetence costs you I see no reason why you should not be able to collect back from them for your expenses.

If the officer is "too busy" to show up for the small claims court case, you will win by default and the judgment is good for several years.  If there is no payment after you win either at trial or by declaratory judgment, you send a demand for payment letter.  You can then call in the party you sued into court for an examination of assets hearing if they do not pay.  Failure to show up for the hearing will result in a contempt of court citation to the non-showing party.  If they do show up they will have to explain to the judge why payment has not been tendered.  You can add to the bill all costs associated with the small claims suit including court fees, service of papers fees and registered/certified mail fees so be sure to keep a tab going so you get the full amount due you.

Freedom is not free.  You have to fight for your rights as history well shows.  It is your patriotic duty as a citizen who loves liberty to resist petty tyrannies as well as the major ones.  

Rick

Everyone has their tipping point.  YMMV!  You get what you will put up with.

Rick


Title: RE: Cited for CVC 23123 ? CHP Improperly Applying The Law
Post by: KF7CG on May 21, 2014, 02:40:18 PM
Just for a what it is worth note. Have you noticed that almost all traffic offenses have been reduced to the "infraction" level rather than the mis-demeanor. Some are rated even lower.

This occurred to increase the number of convictions in traffic court. The law now only has to provide a prepoderance of evidence level (about 60% chance of being correct) rather than a reasonable doubt level and jury trials can not be requested. In other words the standard of evidence for conviction and other court rules have been loosed in the municipalities favor.

Resonable doubt makes getting convictions on Radar and similar speed clocking measures much easier. It helps eliminate the calibration, accuracy, and confusing signal arguments. Have you ever done an error analysis of a radar speed indication, it takes a few miles an hour to get out of the uncertainty range if you go with reasonable doubt. With preponderance of evidence you migh get a conviction at 1 MPH over.

KF7CG


Title: RE: Cited for CVC 23123 ? CHP Improperly Applying The Law
Post by: KI6LZ on May 21, 2014, 02:54:32 PM
Never heard of traffic infractions ever being misdemeanors. Going over 20 or 30 mph or reckless driving might I guess.


Title: RE: Cited for CVC 23123 ? CHP Improperly Applying The Law
Post by: K6CPO on May 23, 2014, 11:42:20 AM
.
.
.
the charge was changed to driving with undue care and attention, which he lost!

Guess it's time to rig up a footswitch for PTT, and a hidden mic. Is it a crime to appear to be talking to yourself?



I found a remote mic and PTT switch combination on eBay that works well on my Yaesu FT-7900.  The mic is on a gooseneck and can mounted in a convenient location in the vehicle.  The PTT switch can be attached to the shift lever. 

http://www.ebay.com/itm/Mic-100-Handfree-For-Mobile-Yaesu-FTM-350-FT-7900-FT-8900-VX-2200-2500-3200-/231084219630?pt=US_Ham_Radio_Transceivers&hash=item35cdb15cee


Title: RE: Cited for CVC 23123 ? CHP Improperly Applying The Law
Post by: KF7CG on May 28, 2014, 11:04:10 AM
As to traffic tickets being misdemeanors, if my memory serves correctly they were in Florida in the sixties. The lowest class misdemeanor but still a misdemeanor. Your fine, as it were, was actually an appearance bond that most traffic courts would convert to the penalty for a summary judgment if you didn't appear. Those are days long gone now, and the officer's word is all that is needed to prove you were speeding in many jurisdictions. This is even if he was just observing you pass by.

The traffic cameras fall into the "Law as Revenue" category also. These units are notorious for being revenue generators of questionable virtue and because most are operated by contractors hard if not impossible to defend against. Getting the levy into court can be a monumental task.

KF7CG