Most reasonable people can agree that holding your phone to your ear and talking while driving is a distraction. After all, you’ve got one hand off the wheel and your attention is focussed elsewhere. Most people will also agree that texting or typing on your phone while in motion is also a dangerous driving move.
But most people, in my experience, do not agree with how broad British Columbia’s cell phone driving law is. In fact, in BC you can get a ticket even if you are not using your phone.
What if your phone is not working or immobilized?
Many phones these days come with features that sense whether the phone is in a vehicle and, if so, will immobilize the phone so that it cannot be used until you are no longer driving or until you confirm you are a passenger. Drivers who have these often feel comfort in knowing that they will not get a ticket. But that comfort is misplaced.
Take, for example, the case of Mr. Tannhauser. He received a ticket for having his phone in his hand. This was despite the fact that he had used an immobilizer app to disable the phone. Despite that, because the phone was in his hand it was enough to see him receive the ticket.
Now, Mr. Tannhauser was acquitted at trial. And he was successful after the Crown appealed as well. But not all drivers are so lucky. A driver referred to in the same case as Mr. Tannhauser was convicted at trial based on the fact that his phone had a dead battery. The difference, the traffic court justice said, was due diligence.
So even if your phone has a dead battery, you can still get a ticket and there is a strong likelihood you will be convicted of using the phone if you dispute the ticket.
What if you’re not talking or texting on your phone?
You can still get a ticket for distracted driving even if you are not talking or texting on your phone. While I did succeed in a case involving a man who had his phone loose on his passenger seat earlier this year, the reality is that most people do not have their phone just sitting there.
If your phone is being used to play music, for GPS directions, taking a call on speakerphone, or for any other reasons, it must be securely affixed to the vehicle. The legislation requires that the phone be securely mounted to your vehicle at all times, except if the phone is simply not in use. In those circumstances only can it be loose in your vehicle without a mount.
What if your phone is just on your lap?
As soon as your phone touches any part of your body, that is considered using it. If your phone is on your lap, courts have interpreted that as having your phone in a position in which it may be used.
There was even a recent case involving a man who had his headphones in, which were connected to the phone. The court found that by having the headphones connected he had essentially extended the size of his phone and was holding it, using his ears. So if your phone is in contact with any part of your body, you are violating the provisions of the law.
How do I fight a distracted driving ticket in BC?
The reality is that it is possible to get a ticket for using your phone even if you are not doing anything that you would consider using it. The law is so severe that even glancing at the screen of the phone at a red light or having your phone sitting in your cup holder if you have your N is enough to catch the attention of the police, and to subsequently earn you a ticket.
The consequences for cell phone tickets are severe. There are four driver penalty points associated with the ticket, and a second cell phone ticket can run up to $2000 in fines. Cell phone tickets will also trigger automatic insurance rate increases. And if you have your N or you have two cell phone tickets, you will run the risk of losing your license for several months simply on the basis of one ticket.
But there are things you can do. You have 30 days from when you receive a cell phone ticket to dispute it, regardless of whether you were using your phone. A lawyer like myself can help you defend yourself in court.
And if you’re still wondering what you can do to defend yourself on a cell phone ticket, or you still need to know more about the cell phone law, you can always take an online course. The BC Distracted Driving course is a good guide to cell phone laws. Upon successful completion of the course you will also get a certificate which may help you in traffic court.
Vancouver Criminal Lawyer with a focus on impaired driving, cannabis legalization and related issues, and immediate roadside prohibition defence.