Cell phone tickets can be tricky to beat. The bar is so low that simply holding your phone while driving is enough to uphold a conviction. Excuses such as “I wasn’t even calling anyone” or “I was just moving it” frequently fall on deaf ears.
Although not a criminal offence in BC, the penalties for using an electronic device while driving are severe. For a first offence, you face a fine of $368 and four penalty points. But that’s not all. You will also have to pay insurance premiums in the form of an extra $444 Driver Risk Premium. The four penalty points are also enough to trigger an added $210 Driver Penalty Point Premium, assuming you have a clean record. That single ticket could end up costing you more than $1,000. You might even be prohibited from driving if you are a Class 7 ‘N’ or ‘L’ driver or if you already have previous offences on your driving record.
Of course, you can avoid all this if you challenge the ticket in traffic court. Whether you will be successful depends on the circumstances of your case. A necessary element of the offence of using an electronic device is the ‘use’ of the device. The problem is the term ‘use’ has been applied quite loosely in cell phone ticket cases.
Meaning of ‘use’
Definitions of using an electronic device, under the Motor Vehicle Act (MVA), include:
● Holding an electronic device in a position in which it can be used.
● Using one of the device’s functions.
● Talking with another person or another device.
Holding your phone in your hand can be enough to meet the offence of using an electronic device regardless of whether or not you are using it to text, call or use any other of the phone’s functions. Picking your phone up if it falls into the footwell while driving can be sufficient to meet the requirements of the offence, even if you are stopped at a red light.
Using the device’s functions has also been loosely defined. In this case, a driver lost his appeal against a distracted driving ticket he received for plugging his cell phone into a charger in his car while stopped at an intersection. The judge determined that charging the phone counted as one of its functions and therefore upheld the ticket.
How I beat a cell phone ticket
Convictions for using an electronic device while driving have also frequently been upheld for having your phone unfixed in your car, such as in a cup holder or lying on the passenger seat. Certain regulations under the MVA allow devices to be present within sight of a driver but only if they are “securely fixed” such as in a dashboard-mounted holder. However, a case I fought for a client recently could change that.
My client had been given a ticket after he was stopped by a police officer who observed a cell phone “wedged between the folds of the passenger seat such that the screen was facing the driver”. The screen was not illuminated.
We appealed the ticket at traffic court where a judicial justice found that placing the cell
phone within the folds of the car seat didn’t meet the “securely fixed” requirement. The
appeal was dismissed.
I appealed the traffic court decision at BC Supreme Court, where I argued that the meaning of ‘use’ has previously been defined as some form of holding of a device done together with another “accompanying act” in order to constitute “use” of the device.
The Supreme Court judge found the traffic court judge had focused too much on how the phone was or was not connected to the vehicle and did not address the question of use. Since the officer never saw the driver touch the device in any way there was no “accompanying act” and he could not have been found to have been using it.
The judge stated that “the mere presence of a cell phone within sight of a driver is not enough to secure a conviction”. This case has big implications because it means police can no longer issue tickets for simply having an unsecured cell phone within sight of the driver. It confirms that there has to be some touching or holding of the device in order to constitute use.
We can win
Cell phone tickets have proven to be very lucrative to the government because it’s easy for police to issue them and they are hard to beat in court. This case finally signals that you actually have to be touching your phone in some way in order to use it. The system as it has been functioning until now didn’t make sense. After all, how can you be fair of you are punished for using a phone while driving without actually using it in a literal sense.
I defend all kinds of traffic violations I am passionate about seeing the law applied in a fair manner. If you have a traffic ticket you would like to challenge, call me on 604-685-8889.
Vancouver Criminal Lawyer with a focus on impaired driving, cannabis legalization and related issues, and immediate roadside prohibition defence.