How to Fight a Cell Phone Ticket in California

This article was co-authored by Lahaina Araneta, JD. Lahaina Araneta, Esq. is an Immigration Attorney for Orange County, California with over 6 years of experience. She received her JD from Loyola Law School in 2012. In law school, she participated in the immigrant justice practicum and served as a volunteer with several nonprofit agencies.

There are 15 references cited in this article, which can be found at the bottom of the page.

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California law prohibits drivers from making telephone calls or sending text messages on a handheld cell phone while traveling. Drivers under 18 cannot even make hands-free calls. [1] X Research source If you receive a ticket, you have some options for contesting the violation. Start by building your defense strategy and then ask for either a court trial or a trial by mail.

Building Your Case

• Were you making an emergency call? The law doesn’t apply to you if you were calling the police, fire department, or emergency services.
• Were you operating an authorized emergency vehicle? If so, then you shouldn’t get a ticket.
• Were you operating your vehicle on private property? The law doesn’t apply in this situation.
• Were you checking your GPS or doing something other than texting or talking on the phone? If so, that isn’t illegal. [3] X Research source

• You weren’t moving. You can argue you were actually parked when you were using your cell phone.
• Your passenger used the phone. The officer might have seen someone using the phone, but it wasn’t you.
• You were using speakerphone. If you are at least 18 or older, the law allows you to do this.
• You used a hands-free phone. Drivers 18 and older can use hands-free phones like Bluetooth or other earpieces, so long as both ears aren’t covered. [4] X Research source

• You can make a witness show up to court and testify by serving them with a subpoena. Get subpoenas from the court clerk’s office.
• If the witness is unable to appear in court, they can submit an affidavit, which is a notarized letter testifying to what they saw.

Obtain phone records. You might argue that you were calling emergency services when you were stopped. In that situation, you’ll need copies of your phone records to show who you called. You can get copies of your phone records by contacting your cell phone provider.

• Find a traffic attorney by contacting California’s state bar or a lawyer referral service in your county. [5] X Research source
• Ask how much the attorney charges. You shouldn’t hire someone if you can’t afford them.

Pleading Not Guilty

• With a trial by written declaration, you never show up to court. You waive the arraignment and instead present written evidence. However, these cases are harder to win and not everyone has the option of a trial by written declaration. Check your ticket or courtesy notice, which might state you need to appear in court. [6] X Research source

• At the arraignment, you will plead not guilty.
• You can also request a trial by written declaration when you go to court.

• If you want a trial by written declaration, you can pick up the forms when you stop in.

• Traffic court is a division of criminal court, which differs from civil court.

• If you want a trial by declaration, include a self-addressed stamped envelope so that the court can mail you forms.

Attending Your Trial

• If you only have jeans, make sure they are neat and clean.

• This is also a good opportunity to show remorse and explain that you have learned your lesson.
• Many times, the officer will agree to dismiss the case in order to save time or if the infraction wasn’t very serious.

• “What color car was I driving?” or “What color jacket was I wearing?” You want to cast doubt on the officer’s ability to see clearly. [11] X Research source If the officer doesn’t know the answers to these questions, it shows they weren’t paying close attention.
• “How fast was I going?” This is a good defense if you claim you weren’t moving. Follow up and ask how the officer knew your speed.

• Avoid asking leading questions, which can be answered with a “yes” or “no.” [12] X Research source For example, don’t ask, “You never saw me make a phone call, did you?”
• Instead, as a series of questions to get the same information. “Where were you sitting in the car?” “What were you looking at?” After that, you can ask, “Did anyone make a phone call?”

• Sit up straight. Slouching signals you’re afraid of the truth. Push your shoulders back and look everyone in the eye.
• Avoid guessing. If you don’t know an answer, say, “I don’t know.” That’s better than guessing and being wrong. [14] X Research source
• Speak in whole words and sentences. Don’t say “uh huh” or make other non-word sounds.
• Leave humor at home. Your friends might think you’re the life of the party, but everyone’s humor is different.

• For example, your defense might be that a passenger was using the phone, not you. In that case, your argument might sound something like this: “Your Honor, the evidence shows I didn’t use the phone while driving. My 2 witnesses, Mrs. Kim and Ms. White, testified that Mrs. Kim was using the phone as she sat in the passenger’s seat. There’s no reason to credit Officer Kendrick’s testimony. He didn’t even know the color of my car or the color of the sweater I was wearing. He simply testified that he saw someone on the phone.”

• If you win, then any bail money you paid should be refunded to you.

• File your notice of appeal within 30 days of the verdict. Ask the clerk for a Notice of Appeal form and fill it out. [16] X Research source

Having Your Trial by Written Declaration

Complete the request form. You must fill out and submit form TR-205, Request for Trial by Written Declaration. You can visit the clerk’s office to pick up the form or mail a request for the form to the address listed on the ticket. If you mail the request, be sure to include a self-addressed, stamped envelope so they can send you the form and instructions. [17] X Research source

• You can use form MC-030 and form MC-031 for additional pages. You must print your name and then sign and date your statements. Attach them to form TR-205. [18] X Research source
• You don’t have to use the forms. Instead, you can write a letter. However, you must put the following sentence at the end of the statement: “I declare under penalty of perjury under the laws of the State of California that this statement is true and correct.” Sign underneath this statement.

Collect your supporting evidence. You might have cell phone records that support your case or witness statements. Witnesses should type up their own statements and sign them under penalty of perjury. Remember to mention this supporting evidence in your statement.

• Remember to include your bail amount. Send a check or money order, but not cash.

• If you’re found guilty, your fine, fees, and penalties will be deducted from your bail deposit. You may end up owing more money.
• If you’re not guilty, your bail deposit will be refunded to you.

• With this option, the entire case starts over completely. You may choose not to testify in your new trial if you don’t want to.

Expert Q&A

Lahaina Araneta, Esq. is an Immigration Attorney for Orange County, California with over 6 years of experience. She received her JD from Loyola Law School in 2012. In law school, she participated in the immigrant justice practicum and served as a volunteer with several nonprofit agencies.

If your phone was not being used in a hands-free manner, it is still illegal. A separate law prohibits texting or any other use of a wireless device while driving. However, the law contains exceptions for: emergency services professionals while operating an authorized emergency vehicle turning on or off a mounted GPS, so long as only one tap or swipe is required to do so (read more about the law as it applies to GPS), or using a manufacturer-installed system that’s embedded in the vehicle.

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