Distracted Driving Tickets: You May Have a Valid Defence

The Provincial Government clearly had good intentions when it made changes to the Motor Vehicle Act in 2010 to prohibit the use of personal electronic devices while operating a motor vehicle.

Barely 20 months after the legislation was introduced, Government had already tallied more than 46,000 tickets issued for distracted driving. Despite criticism from drivers, cell phone use while driving soon became a priority for law enforcement and legislators alike. It wasn’t entirely surprising. After all, distracted driving is a serious offence and can be a factor in crashes causing severe injury and death.
ICBC reports that approximately 78 people are killed each year in crashes “where driver inattention or distraction is a factor.” And as Government struggled to figure out how to get drivers to leave their phones alone, police conducted more and more enforcement blitzes with increasing vigilance.

Penalties have also doubled since the legislation was introduced. Initially, drivers caught using an electronic device were subject to a $167 ticket and three penalty points. Changes made in June last year increased the fine to $368 and added an additional penalty point.

This means a driver given a distracted driving ticket will now end up paying $543 in total for a first offence, when factoring in the increased premium for the extra penalty point.

What Does the Distracted Driving Legislation Actually Say?
The Government relies on the Motor Vehicle Act in its prosecution of distracted driving. The Act defines electronic devices to include not just cell phones, but also GPS devices, televisions, music players like iPods, and even voice recorders. Drivers are still allowed to use electronic devices while behind the wheel, but a criteria must be met.

For cell phones, this generally means using a hands-free device that’s either voice-activated or requires only one touch to start or end a call. A section in the regulation also requires drivers to “securely fix” their electronic devices to the vehicle in a way that doesn’t obstruct the driver.

Section 214.1 of the Act defines the “use” of an electronic device like so:

1. holding the device in a position in which it may be used;
2. operating one or more of the device’s functions;
3. communicating orally by means of the device with another person or another device;
4. taking another action that is set out in the regulations by means of, with or in relation to an electronic device.

There’s the Legislation, Then There’s the Reality
These days, simply taking a glance at a phone while behind the wheel may result in a ticket. It doesn’t matter if you’re texting at a red light, while idling in gridlock traffic, or even just plugging in your phone. Even if an officer isn’t certain that a phone is in use, such as in cases where you’re simply holding the phone without any intention to use the device, you may receive a ticket. Heck, police might pull you over even if you’ve followed the law in using your phone. It’s not always easy for police to tell from outside a vehicle exactly what the driver’s circumstances were.

Helpfully, two decisions from BC Courts have established that drivers may have viable defences when simply holding a cell phone, or having the phone loose and unsecured in a vehicle. In a case called R v. Chan, a Novice driver received a ticket just for having the device charging while placed in his vehicle’s cup holder. Novice drivers, under the Motor Vehicle Act, do not have the right to use a cell phone in any circumstances except for in an emergency. But the judge determined that simply charging the device does not constitute “using” the device. Moreover, the judge ruled the requirement for having a hands-free device “securely fixed” to a vehicle does not mean that a loose phone in a car is an automatic offence; regardless if the device was “in a cup holder, or laying on a passenger seat.”

In another phone-charging case, called R v. Jahani, the judge agreed with the driver’s argument that just holding a phone is not enough for a conviction. The judge concurred that “…the Motor Vehicle Act specifically provides that there must be holding and further an accompanying act” when defining whether an electronic device is in use. However, it’s worth pointing out that Mr. Jahani ultimately failed his appeal in the BC Supreme Court. Mr. Jahani admitted he was in the act of plugging his phone in when the officer pulled him over.

So Can I Hold the Phone or Have It Loose in the Car or Not?
What the two decisions demonstrate is that the courts allow a bit of leeway when it comes to how you’re holding your phone, and where you have it placed.

A distracted driving ticket’s validity can be suspect if, for example, you reach down to pick up a phone that fell near the brake pedal. Or perhaps, if you were just holding the phone to clean it, you might not necessarily be offending the law. Those circumstances would depend on how the phone was being held. Or let’s say you had both your phone and your cigarettes in the same cup holder, and a police officer issues a ticket after seeing you reach into the cup holder. Well, you might just have been reaching for a cigarette. Or maybe holding a phone that has sentimental value relieves your anxiety while you drive… who knows? Though in this case, you might need to consult a psychiatrist!

The point is, there can be many reasonable scenarios where someone appeared to be using a phone, but was actually doing no such thing. An experienced traffic ticket lawyer like myself can help distinguish those cases where the holding meets the definition of “use” under the Motor Vehicle Act, and those where it does not.