Check if an exception applies. California’s ban on cell phone use has several exceptions. The easiest way to fight the ticket is to show that an exception applies to you. Check the following:
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.
Identify other defenses. You can always claim you weren’t using your phone and that the officer is mistaken. You can also raise these other defenses:
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.
Find witnesses. You’ll strengthen your case if other people can testify on your behalf. Make sure the witness has relevant information, which will depend on your defense. For example, your defense might be that you were using the speakerphone on your cell phone. In that situation, someone sitting in the car with you would make a good witness.
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.
Hire a traffic attorney if you need help. California doesn’t offer free attorneys for traffic citations, so you’ll need to hire someone yourself. Get a lawyer if you don’t know how to defend yourself or are feeling overwhelmed.
Find a traffic attorney by contacting California’s state bar or a lawyer referral service in your county.
Ask how much the attorney charges. You shouldn’t hire someone if you can’t afford them.
Choose your type of trial. You can fight the ticket in 1 of 2 ways: by having a court trial or a trial by mail. A court trial is a 2-step process: you request an arraignment where the judge reads the charges against you and you enter a plea. Then you attend a trial.
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.
Go to court to request an arraignment and trial. Your traffic ticket should give you a date when you must appear in court. The state should also send you a reminder notice. Go to court on that date and ask the court clerk for an arraignment. You’ll need to schedule an arraignment and a trial date. In some counties, you may be able to schedule them both on the same day.
At the arraignment, you will plead not guilty.
You can also request a trial by written declaration when you go to court.
Visit the traffic clerk’s office to schedule your trial, if applicable. In some cases, you may be able to request a trial by stopping into the traffic clerk’s office before your Notice to Appear date. Say you want to plead not guilty and ask for a trial date. If you choose this option, you must make a bail deposit.
If you want a trial by written declaration, you can pick up the forms when you stop in.
Call the clerk’s office in charge of traffic cases. You can also schedule a trial date by calling the clerk and saying you want to waive your arraignment. Look through the clerk directory to find the clerk’s office that handles traffic court. State you are pleading not guilty and need a trial date. You’ll need to make a bail deposit.
Traffic court is a division of criminal court, which differs from civil court.
Plead not guilty by mail. You might not be able to get to the courthouse. In this situation, you can plead not guilty and request a trial date by mail. Read your Notice to Appear to find out how. You’ll need to deposit your bail amount this way.
If you want a trial by declaration, include a self-addressed stamped envelope so that the court can mail you forms.
Dress professionally. People will start judging you as soon as soon as they see you, so look your best. You don’t have to wear a suit, but dress pants or a skirt and a dress shirt would be ideal. Wear dress shoes if you have them.
If you only have jeans, make sure they are neat and clean.
See if the officer is willing to dismiss the case before the trial. You’ll have a chance to speak to the officer before the trial begins. At this time, present your evidence and ask the officer if they’re willing to dismiss the case.
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.
Ask the officer questions during the trial if they aren’t willing to dismiss the case. Your lawyer can do this if you have one. If you don’t, then you should prepare a list of questions to ask. The questions will depend on your situation, but consider asking the following:
“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. 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.
Call your own witnesses. You can ask your witnesses questions. Remember that they can only testify as to what they observed. After you ask questions, the judge might ask follow-up questions.
Avoid asking leading questions, which can be answered with a “yes” or “no.” 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?”
Testify confidently. You aren’t required to testify in court. However, you might have to testify if you didn’t have a passenger you can testify as to what you were doing. You want to be a credible witness, so do the following:
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.
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.
Make a closing argument. The judge might let you make a closing argument. The best arguments are based on the evidence, not theatrics. Tell the judge why you didn’t break the law and remember to mention specific pieces of evidence.
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.”
Receive the verdict. After all evidence has been presented, the judge will issue a verdict. If you lose, then you’ll need to pay your fines and penalties. However, if you already paid bail money before trial, your fine will be deducted from it. If the bail money is insufficient, you’ll have to pay the extra.
If you win, then any bail money you paid should be refunded to you.
Appeal if you lose. An appeal is not a new trial. Instead, the appellate court will review the record to see if the judge made an error or if no substantial evidence supports the verdict. Those are the only ways you can win, so think carefully if doing an appeal is worth it.
File your notice of appeal within 30 days of the verdict. Ask the clerk for a Notice of Appeal form and fill it out.
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.
Draft a written statement. Explain what happened in your own words. Remember to be honest and not lie, which can get you in trouble. Make sure to proofread your statement because typos and other errors will reduce your credibility. Ask someone you know to read the statement and ask them what they think.
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.
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.
Submit everything. Make a copy of the forms for your records, and then send the entire packet of original documents to the court clerk before the due date. You can mail it certified mail, return receipt requested so that you know it has been received.
Remember to include your bail amount. Send a check or money order, but not cash.
Receive your result. After you submit your materials, the police officer who cited you will respond. A judicial officer will then review the materials and make a decision. You will be notified by mail.
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.
Request a new trial. You might have been unhappy with the result. In this situation, you can request a new trial, which will be held in court. You have 20 days to make a decision. Fill out and submit form TR-220.
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.