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.
Hi Kyla,
I was also in a similar situation yesterday.
I am a N driver and I had just picked up my friend in front of her building. As I was about to signal and enter the driveway, there were cars behind me so I waived to them to pass.
That’s when the police stopped me and told me I was getting a ticket for distracted driving when I wasn’t even touching the phone. The phone was off and mounted on the dashboard.
I was just about to drive out of the parking spot and I think the ticket was very unfair even for a N driver.
It feels like the police were just waiting for something to happen.
Do you think my case would be an easy dispute?
Funny thing is the police literally told me I couldn’t even listen to the radio. HAHA
-Hailey
Hi Kyla,
I was at a red light in vancouver and stupidly decided to plug my dead phone into my usb charger in my car, as I was doing so i was noticed by vpd, pulled over and issued a ticket for eletronic device use.
I am an N driver and know eletronics are prohibited, I was just wondering if there was any chance to dispute the ticket considering the device was out of battery.
– Marcus
I recently received a ticket under 214.2(1). I was holding my auto’s wireless radio control in my hand. It has no voice communication/texting functions or visual features, just buttons. The device does not appear to fit into sub. section (1) that I am charged under. Also, I looked up the MVA chapter 318 on the day the ticket was issued (July. 28/19) and the found that the heading over the header of the section stated “This Act is current to July 24, 2019”. It would therefore appear that the MVA 214.2(1) section was not enforceable on thedate of issuing the ticket. Any thoughts on using these for a potential defense.
Hi Kayla,
I have a quick question. I was a red light yesterday and my phone was connected to the Bluetooth in my car. I touched my phone to unmute maps and that’s exactly when a cop knocked on my door and caught me. The car was not moving and it was a long line of cars waiting at a red light. I’m finding it hard to digest as it’s as simple as looking at your car music System / in built maps and touching the screen/ volume buttons . Kindly let me know your thoughts on this. Is there no first time forgiveness / warning considering the rules changed recently and there’s no clarity on what can and cannot be done?
Thanks!
I received a distracted driving and speeding ticket because I went passed an unmarked cop in the inside lane, following the speed limit. as I was driving by he saw my phone sitting on my lap face down plugged in. he then swerved out of his lane to get behind me. he then waited till we were very near approaching a speed change sign and turned his lights on. for speeding. I pulled over into a highway scale station and when he approached my vehicle he was severely agitated, leaning into my window yelling in my face “Why are you on your phone? What do you think you’re doing?” I was completely oblivious that my phone was even on my lap, so I was confused by those questions. I asked him to set back from my vehicle. said I wasn’t on my phone at all. he called me a lier, then brought up the “speeding”. I was slowing down from 70 to 60km/hr. I was going appx 65km/hr when he turned his lights on, but I had not yet reached the 60km/hr sign. I asked how he’s able to use an unrecorded speed to accuse me of speeding, being theres no way of proving his allegations, giving me no reasonable answer. his behaviour towards me was aggressive right from first point of contact, which I felt was very intimidating and unnecessary.
I have disputed both infractions. Court is set for march. just wondering do you think I have a fair chance of this being dismissed? or do you have any advice that could help my chances?
Hello Kyla,
Today at court I was found guilty by the JJP of 214.2(1), “use of electronic device while driving” because my phone was between my legs.
I drove no less then 100m or so as my workplace is in the plaza behind the gas station where the officer was on duty. During that short drive I had no interaction with my phone; I was not actively using or holding my phone, I was not on a phone call, no headphones were on, my music was not playing and my screen was off. The officer focused on the placement of my phone rather than the literal “use” of my phone. He noted from his observations that my phone was between my legs and when I cross examined him, he acknowledged that I didn’t touch the phone and or hold it. He also acknowledged that I was not on a phone call, and that my music was not on. Did I mention I placed my phone in my bag once the officer told me I shouldn’t have it between my legs (lesson learned). I told him “sorry let me place that in my bag”.
I watched as the JJP lowered the ticket amount of three individuals that pleaded guilty to actually holding their phone while being approached by other officers.
How can I be guilty of an action not yet committed, can one be charged with murder if a knife is still simply wedged between their legs or beside them on the passenger seat, or can one assume that by simply driving ones car that they will be speeding and so therefore be given a ticket for that act that is presumed to committed in the future? Where’s the Justice?
Ordinarily, the vehicle information part of the citation “isn’t part of the allegation”, but if the accusation is “using an electronic device while operating a vehicle”, the notation of the vehicle seems prudent. After all, since bicycles are under the MVA, one could “technically” get a ticket while operating a bicycle, even-though it’s not a motorized vehicle. With that, the notation / description of the vehicle is important. Side note; it must be because the officer “marked” my vehicle during the stop. I argue the vehicle relevance because the noted vehicle was WRONG. The insurance documents (accidentally) given were not only expired, but from an old plate that is no longer in service. Had the officer been diligent, he should have noticed the discrepancy because that would immediately warrant a 24(3)(b) citation (driving without insurance), garner a $568 fine and likely been an impound.
So, my question; is arguing the officer’s judgement and noting incorrect info a good start for dismissal? Side note; it m not sure how any LEO is trained to identify that the device is a) electronic b) functioning c) connected to a network (so as to allow “use”).