A lot of people contact us after receiving a distracted driving ticket, and the biggest question they usually have is ‘how can I get a ticket for moving my phone?’
When people think about the law, which prohibits using an electronic device while driving most people don’t understand that the term ‘use’ is defined very broadly in the Motor Vehicle Act.
Under the MVA ‘use’ is defined as taking a call, talking on the phone, sending a text or email, interacting with any features of the phone or holding the phone in a position in which it may be used.
That’s the thing that most people don’t realize, the MVA prohibits the broadest range of conduct when you have your phone or electronic device in your vehicle. It doesn’t matter whether you’re using it.
Many people have tried to bring defences to traffic court by bringing their phone records to show that they weren’t on a call at the time that they received their ticket. Or by testifying saying they weren’t talking on the phone, they were simply changing the song or resting it on their lap.
All of those things, despite not being using your phone in the literal sense of the word, are using your phone in the sense of the word that is meant in the MVA.
Are there any exceptions?
While the laws around touching your phone while operating a vehicle are strict, there are a few exceptions to using your phone.
The first is that the MVA does allow you one touch for the purposes of ending, answering or declining a call. So, if you have your phone mounted in your car, and somebody calls you and you need to tap the screen to answer the call, that’s permissible.
You cannot tap the screen for the purposes of anything else, even if it might be just as safe as tapping the screen to answer a call.
We get a lot of people who contact us because they touched the screen of their phone to change the song they’re listening to and then received a ticket for that. Although it is still one touch, the one touch that is allowed is only acceptable for those three specific purposes.
You also can’t tap the screen to accept the offer of shorter directions to get to your destination. Once again, the only permissible screen tapping that is allowed is for the purposes of accepting, ending or declining a call.
Does this seem absurd? Absolutely.
Laws are behind the times
And one of the reasons the law is so absurd is that the current law that we have, in relation to using an electronic device while driving, came into force and effect in 2010, which was almost 13 years ago.
If that isn’t crazy enough, it’s also important to note that it was drafted before that, meaning that all of the laws focused on the existence of technology, both in cars and in cellphones, at the time the law was drafted.
Since then, a lot of new technological advancements have been made, and the law has not been amended to keep pace with the constantly changing technology landscape.
All of the features that you can operate from your phone with relative ease were not contemplated when the law was drafted.
It’s an interesting nuance that the law explicitly prohibits sending a text message or an email while driving, but it doesn’t differentiate between doing that exclusively using voice commands, and doing that with your hands.
Technically, the MVA prohibits you, from dictating using only voice commands, and sending a text message from your phone.
Are you likely to get a ticket for that? Absolutely not, because nobody is really ever going to be able to tell you were doing that and prove it, but it still demonstrates how far behind in the times the law actually is.
Emergency use of a phone
Another exception to the holding the phone rule that people should know is if you’re holding the phone for a purpose that is related to an emergency.
There is a section in the MVA that allows you to use the phone for the purposes of contacting emergency services. If you need to call in a drunk driver, or report a collision, or call emergency services for a medical problem, you’re allowed to use the phone for that purpose.
Emergency is not clearly defined in the MVA, but there is some judicial information that has been given to it to suggest that it’s broader than just contacting police, fire or ambulance.
However, we would not recommend using your phone for personal emergencies behind the wheel, because personal emergencies certainly weren’t what the legislature intended when they provided an exception for contacting emergency services.
There are also exceptions to some of the conduct that people think they’re not allowed to engage in while behind the wheel.
For example, the MVA requires your phone to be mounted, if you are using its features. But the courts have determined that it would produce an absurd result if the MVA were interpreted in such a way that prohibited you from, effectively passive use.
These involve cases where people have their phone loose in the cupholder and they’re playing music through the speakers of their car using Bluetooth features and do not touch the phone.
There have been instances where people have been ticketed for that, but the courts have ultimately determined that passive use doesn’t engage any of the safety risks that the legislature intended, it’s no different than listening to the radio and so it is not a violation of the MVA to engage in that sort of conduct.
Similarly, it’s not operating the features of the phone to simply have it loose in the car while connected to a charging cable. So, charging it and having it sitting in a cupholder or on the passenger’s seat is permissible.
Stricter rules for beginners
For people who have their N License, the rules around using your phone are also complicated.
That’s because the class 7 N rules for using your phone require that you not use your phone for any reason.
Some courts initially interpreted this as meaning that you could not have your phone anywhere in the compartment of the vehicle with you, visible or accessible, if you had your N.
This led to a conflict in the case law because people would get tickets for having their phone loose in the vehicle, which you’re allowed to have, simply because they had their N.
Ultimately it was interpreted that the legislation did not prohibit you from just having your phone in the car if you have your N. But there is still an explicit prohibition in the MVA from any hands-free use of the phone; talking, texting, playing music or using GPS, are all prohibited while you’re a class 7 N driver.
The reason for the prohibition is that these drivers are less experienced, and thus more likely to be involved in a collision based on the distraction, just from the ambient noise or operation of the device.
Ultimately, our distracted driving laws in BC are confusing, out of date and don’t really get at the heart of the conduct that they are trying to prohibit.
Unfortunately, it’s not up to us to change the laws, so if you get a distracted driving ticket and you’re confused as to why give us a call. We can probably help.
