Glancing at a Map App While Holding a Phone Is “Operating” While Driving
Robert Phillips
Robert Phillips
  • June 13, 2025

Glancing at a Map App While Holding a Phone Is “Operating” While Driving

By Robert Phillips, Deputy District Attorney (Ret).

People v. Porter (Jun. 3, 2025) __ Cal.App.5th __ [2025 Cal.App. LEXIS 355]   

 

RuleThe term “operating” under section Veh. Code § 23123.5(a) prohibits all use of a handheld cellphone’s functions while driving, including looking at a mapping application on the phone.  The legislative history behind the enactment of section 23123.5, as well as the intended purpose of this section, dictate that the term “operate” be given a broad interpretation, thus including the mere looking at the mapping application on one’s cellphone while driving. 

 

Facts:  Defendant Nathaniel Gabriel Porter was observed by a police officer holding onto his cellphone with his left hand while driving his motor vehicle.  Defendant admitted that he was looking at a mapping application on his phone.  As a result, the officer cited hun for a violation of Veh. Code § 23123.5(a); the infraction offense of “holding and operating handheld wireless telephone or electronic wireless communications device while driving.”  Defendant contested the citation in the Santa Clara County Superior Court, arguing that he was not “operating” the device, but merely looking at it.  The traffic commissioner disagreed, and found him guilty, ordering him to pay a $158 fine.  Defendant appealed to the Appellate Department of the Santa Clara Superior Court.  The Appellate Department reversed, agreeing with defendant, concluding that “operating” a wireless telephone requires active use or manipulation of the device, and that merely looking at one’s cellphone’s mapping application did not constitute “operating” it.  The Sixth District Court of Appeals transferred the matter to itself on its own motion. 

 

Held: The Sixth District Court of Appeals reversed, reinstating defendant’s conviction.  On appeal, defendant continued to argue that he was merely holding and observing his phone while driving. This, per the defendant, does not constitute “operating,” as required by Veh. Code § 23123.5(a).  Referring to the Vehicle Code itself, subdivision (a) of section 23123.5 makes it illegal to “drive a motor vehicle while holding and operating a handheld wireless telephone or an electronic wireless communications device.” Included within the statute are several exceptions (see “Note,” below), none of which applied here. So it came down to an issue of what the Legislature meant by the single word “operate” when it enacted section 23123.5; i.e., was he “operating” his cellphone by merely looking at a mapping application in his hand-held cellphone while driving   Defendant argued that at the very least, the term “operate,” not being defined in the statute, is unconstitutionally vague.  

 

The Court rejected this argument, noting that a statute is not void for uncertainty if any reasonable and practical construction can be given to its language. Such a statute “must be upheld unless [its] unconstitutionality clearly, positively, and unmistakably appears.” To prevail on vagueness grounds, therefore, a litigant must demonstrate the law is “impermissibly vague in all of its applications.”  Defendant submitted that at the very least; “merely holding and observing his phone while driving is not enough to constitute ‘operating,’” and that “the plain meaning of the word ‘operating’ requires active manipulation in ‘more than one swipe or tap.’”  The prosecution, on the other hand, submitted that the common understanding of the word “operating” is to merely exercise “control over an ongoing task.” Agreeing with the prosecution, the Court had no problem giving the term “operating” a broad interpretation after closely reviewing section 23123.5’s legislative history and its underlying purpose. Looking at the legislative history behind the enactment of section 23123.5, the Court determined that by the legislators’ choice to employ the term “operating,” it was intended that 23123.5 prohibit all handheld functions of wireless telephones while driving.

 

The Court also concluded that the Legislature’s purpose in using the term “operating” is not vague. To the contrary, the intent of this statute is to prohibit drivers from holding and using a phone’s functions in any manner while driving.  As noted by the Court; “The purpose behind this section was to reduce distracted driving resulting from advancements in modern phones and to encourage drivers to keep their eyes on the road.”  In reaching this conclusion, the Court determined that the Legislature passed section 23123.5 for the purpose of reducing the necessary harm that flows from distracted driving. “Allowing a driver to hold a phone and observe the screen while driving is contrary to the statute’s purpose.”  “To accept defendant’s interpretation of this section would necessarily lead to the conclusion that a driver could watch (a) video while driving. It would also not be a violation to hold the telephone in one’s hand while driving and read an electronic book, or set a timer and take photographs, or livestream a drive on social media.”  Agreeing with the prosecution that such outcomes would be contrary to the Legislature’s intent, not to mention dangerous, the Court concluded that any activity involving the driver’s cellphone that results in the distraction of the driver’s attention from his driving was intended to be included in the term “operating.”  Therefore, “(b)ased on the legislative history of section 23123.5 and public policy, (the Court) conclude(d that the term) ‘operating’ under section 23123.5(a) prohibits all uses of a handheld wireless telephone’s functions while driving, including observing a mapping application.” (emphasis added.) 

 

Note: I have to agree with Santa Clara County’s Appellate Department. To me, common sense dictates that it takes more than just looking at an app to be doing anything even close to “operating” it.  If the Legislature intended to include merely looking at a map app while driving, it could have said so. It certainly would have helped had the California Legislature exhibited a little foresight and defined for us the term “operating.” At least then Gabriel Porter would have had some warning that using the map app of his cellphone was illegal and would cost him $158 if he got caught doing so.  But that would have been too simple.  I do have to admit, however, that using one’s map app on a handheld cellphone while driving is in fact distracting, and to some degree, dangerous.  On a recent trip to Ft. Lauderdale, Florida, driving in Ft. Lauderdale’s hectic rush hour traffic, and driving like the proverbial little old lady (slowly and carefully) as I typically do, all the while trying to use the map app on my cellphone, I got honked at more times than I have been since I moved out of California. While I thought I was doing just fine (as I tried to ignore the honking), my wife did not; taking my cellphone from me and verbally dictating to me where it was, according to the map app, I was supposed to be going.  This problem has since been solved, at least for me, by having purchased a new Buick that came with a “manufacturer-installed system that (is) embedded in the vehicle,” as allowed under subd. (b) of section 23123.5.  Also, as noted above, other legal alternatives exist. (Subd. (a); voice-operated and hands-free operation.  Also subd. (c); when the device is mounted on a vehicle’s windshield as provided for in V.C. § 26708(b)(12); i.e., in a seven-inch square in the lower corner of the windshield farthest removed from the driver, or in a five-inch square in the lower corner of the windshield nearest to the driver, and while “(t)he driver’s hand is used to activate or deactivate a feature or function of the handheld wireless telephone or wireless communications device with the motion of a single swipe or tap of the driver’s finger.”) So with a little foresight, and the necessary equipment, using one’s cellphone map application by hand is really not necessary, as easy as it may be to do.   

 

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