As we all know, the law regarding distracted driving, also known as use of an electronic device while driving, is vague even with your vehicle in park. So much so that courts are still getting to grips with it and gradually working out how it should be interpreted.
While the law is strict, it does offer some exceptions when using an electronic device while driving is permitted, for instance in the case of an emergency. Another exception s. 214.4 of the Motor Vehicle Act provides is “while operating a motor vehicle that is safely parked off the roadway or lawfully parked on the roadway and is not impeding traffic”.
Essentially, you can use a phone behind the wheel only after you pull over out of the flow of traffic and put the gear shift in park. The facts of a recent case demonstrate what is required to successfully use this defence.
Fact of the case
Th BC Supreme Court decision concerned Kimberley Hrynyk who was charged with use of an electronic device while driving. She pulled up outside a Starbucks in her car and picked up her phone to order a drink on the Starbucks appp. When she discovered the store was closed she rejoined the road.
Ms. Hrynyk entered a left-hand turn lane and stopped at a red light. After realising she still had the app open on her phone, she put her vehicle in park and picked up her phone to close the app so as not to waste data. Holding the phone with one hand, she used the other to enter her passcode and swipe to close the app.
A police officer witnessed this and approached Ms. Hrynyk to tell her to pull over to the side of the road. The officer then issued her a distracted driving ticket with a fine of $320.
Is having a vehicle in park a defence?
Ms. Hrynyk argued that since she had put her car in park and she was only turning off the Starbucks app, she had not endangered anyone and was, therefore, innocent.
The BC Supreme Court judge, however, found that the fact she was stationary when she used her phone was irrelevant. She was at an intersection, her motor was running and she was in a traffic lane. The judge said: “She had not “parked” in the sense of that term defined in the Motor Vehicle Act, and well known to all drivers – that is, she had not stopped off-road or at the right-most extremity of the roadway, outside the flow of traffic.”
So while Ms. Hrynyk’s vehicle was in park, she was guilty of the offence because she was still in a traffic lane and therefore the exception did not apply.
The judge found that she was using her phone according to the terms of the Motor Vehicle Act and ordered the violation ticket to stand. The decision corresponds with the prevailing interpretation of the law and serves as a lesson to all drivers. If you absolutely, positively have to use your phone while you are driving, make sure you are pulled over to the side of the road, out of the flow of traffic, and you have your vehicle in park.
