CVC 23123 / 23123.5

What CVC 23123 and 23123.5 Cover (General Information)

California has two cell phone sections. CVC 23123 bars using a wireless telephone while driving unless it is set up for, and used, hands-free. CVC 23123.5 bars holding and operating a phone or other wireless device unless it is used in voice-operated, hands-free mode, and it allows a single swipe or tap on a mounted phone. The grounds drivers raise to contest these tickets come from those details.

Educational information only. TicketClear is a document preparation service, not a law firm, and does not provide legal advice. This page summarizes what the statutes say and the grounds drivers raise; it may not apply to every situation.

Two different statutes — two different scopes

CVC 23123 — Using a wireless telephone while driving

Bars driving while using a wireless telephone unless the phone is designed and configured for hands-free listening and talking and is used that way. It does not apply to use for emergency purposes or to driving on private property.

CVC 23123.5 — Holding and operating a phone or wireless device

Bars driving while holding and operating a handheld wireless telephone or electronic wireless communications device unless it is used in voice-operated, hands-free mode. A mounted device may be used with a single swipe or tap, and the section does not apply to manufacturer-installed systems built into the vehicle.

The section cited on the ticket determines which arguments apply. A violation of either section is an infraction with a base fine of $20 for a first offense and $50 for each later offense; the total owed is higher once penalty assessments and fees are added. A conviction adds one DMV point only when the violation happened on or after July 1, 2021, within 36 months of a prior conviction for the same offense (CVC 12810.3). Infractions can be contested by written declaration (CVC 40902).

What must be shown for a conviction

CVC 23123: the driver was using a wireless telephone that was not designed and configured for hands-free listening and talking, or was not used that way
CVC 23123.5: the driver was holding and operating a handheld wireless telephone or electronic wireless communications device that was not being used in voice-operated, hands-free mode
The device is a "wireless telephone" or an "electronic wireless communications device" as the section uses those terms
The evidence, such as the citation and any sworn officer declaration (CVC 40902(c)), shows that use
No exception applies: under CVC 23123, emergency use or driving on private property; under CVC 23123.5, a single swipe or tap on a properly mounted device, or a manufacturer-installed system built into the vehicle

Grounds drivers raise to contest (general information)

Device was used hands-free

Neither section bars hands-free use. CVC 23123 applies only when the phone is not designed and configured for hands-free listening and talking, or is not used that way. CVC 23123.5 applies to holding and operating a device that is not being used in voice-operated, hands-free mode, and it does not apply to manufacturer-installed systems built into the vehicle. If calls went through the car's built-in system, a Bluetooth earpiece, or another hands-free setup, a declaration can say so and describe the setup.

Single swipe or tap on a mounted phone

CVC 23123.5(c) allows a driver to use a hand on a phone or other wireless device only when both conditions are met: the device is mounted on the windshield (in the same way a portable GPS may be mounted under CVC 26708) or on or affixed to the dashboard or center console without hindering the driver's view of the road, and the driver's hand activates or deactivates a feature or function with a single swipe or tap of a finger. A declaration can describe where the phone was mounted and the single action taken, such as starting navigation or declining a call.

What the officer could see

The citation, and any declaration the officer submits, describe what the officer says they saw. Facts that bear on that account include the officer's angle and distance, lane positions, window tint, a center console or other object blocking the view of your hands, and how brief the action was. A declaration that precisely describes your driving position and hand placement gives the judge specific facts to weigh against the officer's account.

Which device, and which section

CVC 23123 applies to a "wireless telephone." CVC 23123.5 also covers an "electronic wireless communications device," which it defines to include, but not be limited to, a broadband personal communication device, a handheld device or laptop computer with mobile data access, or a pager. Because that list is open-ended, whether another device, such as a standalone GPS unit or a music player, is covered depends on the section cited and the facts. A declaration can identify the device specifically.

Emergency call (CVC 23123 only)

CVC 23123 does not apply to a person using a wireless telephone for emergency purposes, including an emergency call to a law enforcement agency, health care provider, fire department, or other emergency services agency. CVC 23123.5 has no matching exception for ordinary drivers (its exception covers emergency services professionals driving an authorized emergency vehicle), so this point depends on which section is on the ticket. A declaration needs specific facts: what the emergency was, who was called, and when.

Limits of the exceptions

• Being stopped at a red light or in traffic — neither section lists that as an exception
• A phone mounted somewhere other than the windshield, dashboard, or center console — the single swipe or tap allowance in CVC 23123.5(c) applies only to those mounts
• Typing, scrolling, or more than one swipe or tap on a mounted phone — CVC 23123.5(c) allows a single swipe or tap to activate or deactivate a feature or function
• A general statement that you were not using the phone — the exceptions turn on specific facts, so a declaration should say what you did, where the phone was, and how it was set up

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