March 2, 2017 By Matthew Wallin

Is Using Your Phone a Valid Defense to DUI Charges?

If you have a smartphone, you know that it’s difficult to go anywhere without it. Our phones have become such an important part of our lives that many of us will ignore whatever we are doing in order to check our latest notifications. In fact, you may even be using your phone right now to read this article.

But can using your cellphone be a valid legal defense? Can you claim that you were using your phone to avoid DUI charges?

Such is the claim that Aimee Goetting-Rosenski recently made to an officer when she was approached on suspicion of driving under the influence. The officer found Goetting-Rosenski asleep behind the wheel of her parked car with the keys in the ignition. She claimed she had stopped to play FarmVille, a social media game where players manage virtual farms. However, she was arrested for DUI and charges are pending.

Distracted Driving vs. DUI

Suppose you are driving late at night and you get a text message. You take your eyes off the road as you reach down for your phone, inadvertently veering out of the lane in which you were driving. You swerve back into your lane, and an officer pulls you over on suspicion of DUI.

DUI is a serious charge that can lead to fines, the suspension of your license and jail time. But what if you were to claim that your smartphone usage caused the swerve? If the officer has no other evidence (such as failed field sobriety tests or blood-alcohol tests) that suggests you were driving while under the influence of alcohol or drugs, the prosecution would be forced to reconsider the DUI charge and possibly charge you with a lesser crime.

Instead of DUI, you could be charged with reckless driving under California Vehicle Code Section 23103, which is a misdemeanor punishable by up to 90 days in county jail and fines of up to $1,000. However, even that charge may be difficult to prove because VC 23103 requires that you intentionally drove with a “wanton disregard for the safety of persons or property.” It could be difficult to prove that a momentary glance at your phone was part of a deliberate plan to drive with disregard for the safety others.

Assuming no other evidence suggests that you were under the influence, the charge may instead be knocked down to an infraction for driving while operating a wireless electronic device in violation of California Vehicle Code Section 23123.5. This law, which went into effect at the beginning of 2017, prohibits driving while holding and operating a handheld wireless telephone or a wireless electronic communication device. A violation of this section is punishable by a fine of $20 for a first offense and $50 for each subsequent offense.

So, while using a smartphone while driving is still against the law and could be a potentially dangerous distraction, it is worth considering using your phone use as a defense to a charge that you were driving under the influence. If you are able to prove that your phone use was what caused you to swerve, you could be looking at a much less severe punishment.

Contact the DUI Defense Attorneys at Wallin & Klarich for Help

In California, DUI is a serious charge that merits serious legal help. Officers make mistakes, and innocent people can be charged with this crime. That is why you need to an experienced DUI defense lawyer fighting for you. At Wallin & Klarich, our attorneys have been successfully defending clients in DUI cases for over 35 years. Let us help you now.

With offices in Orange County, Riverside, San Bernardino, Los Angeles, San Diego, West Covina, Torrance and Victorville, there is an experienced Wallin & Klarich DUI defense attorney available to help you no matter where you are located.

Contact our offices today at (877) 4-NO-JAIL or (877) 466-5245 for a free, no-obligation phone consultation. We will be there when you call.

Your Answer

1 comment

  1. Brilliant! Years ago, I suggested this defense to an attorney I worked for. To clients’ detriment, he never used it. He couldn’t grasp the concepts of creating reasonable doubt by emphasizing a non-alcohol-related cause of bad driving, nor that helping jurors feel good about a not guilty verdict can prevent the all-too-frequent “compromise” verdict of the lesser-included.

    Looking back, I wish I would have been more insistent, even though I was just a lowly support staffer. Sadly, I’ve seen safe sober drivers (0.00) prosecuted for DUI, and end up getting a DWAI verdict. Here in Colorado, it’s about generating revenue, and it goes something like this: Trooper sees an older-model inexpensive vehicle being driven late at night by a sole occupant. When driver is pulled over and blows 0.00, Trooper clears his PBT and orders SFSTs, allegedly because of DUID suspicion. Everyone fails the SFSTs, and without dashcam video, it’s the drivers’s word against the Trooper’s. On the way to jail, the Trooper allegedly asks the driver which test they choose (blood or breath) and the driver allegedly refuses a test. Evidence of their “refusal” is emphasized at trial, and without any exculpatory evidence, there isn’t much chance of exoneration. Many if not most judges are complicit with this scheme, and do their part by keeping out any shreds of exculpatory evidence the defendant might have, such as an independent hair follicle test to prove they don’t use drugs, or jail intake video showing them walking with perfect balance.

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