Is pulling over to use your phone distracted driving?

Using an electronic device while driving is naughty

An interesting case provides some guidance as to when the prohibition against using an electronic device inside a vehicle does not apply. We all know that you cannot use your phone or any other electronic device while you are driving, but there are some exceptions. For instance, you may use a phone to call or message emergency services if it is an emergency.

Another exception when it comes to driving and using an electronic device is if you are pulled over. The Motor Vehicle Act provides that the prohibition does not apply, “while operating a motor vehicle that is safely parked off the roadway or lawfully parked on the roadway and is not impeding traffic”.

This seems like common sense. You are allowed to use your phone so long as you are stationary and not in traffic. However, this defence is complicated than it would seem at first blush.

Pulling over to use your phone

In a recent case, a police officer flagged someone over for speeding. When he approached the passenger side window, the officer observed the defendant, Mr. Tang, with a cell phone with a lit screen “in both hands” and his head down.

Mr. Tang had a Class 7 ‘N’ licence which has added electronic device restrictions. If you are someone with a New Driver ‘N’ license or a 7L Learner ‘L’ license, then you are not allowed to use any electronic device while operating a vehicle. That includes GPS and the hands-free features of a phone. The exceptions for emergencies and when they are parked safely still apply, however, the added restrictions complicate matters.

Mr. Tang testified he had not been using his cell phone. He said his mother was calling him and he used his hands to switch off the call, but only after parking the car to the side of the road.

Class 7 electronic device restrictions

You might think that because Mr. Tang only touched his phone after he was pulled over to the side of the road, the exception would apply. However, by admitting that he knew that his mother was calling before he pulled over, the Court found that this meant he had a phone operating in his car.

The definition of ‘use’ of an electronic device includes any of its functions. In this case, that included the ability to receive calls and messages and also to tell who they came from. This meant the device was within reach and in a position where it could be monitored.

The judicial justice said:

“Mr. Tang is a Class 7 driver. He is not authorised, even hands free use, of a phone when driving. The ability to receive or monitor calls while driving is an operation of a function of the phone within the vehicle. Any other interpretation of the prohibition, such that Class 7 drivers may have their phones turned on and operating within the car when driving on the highway, would frustrate the intent of the legislative scheme that has made a distinction in not allowing novice drivers even hands free use of electronic devices to avoid distraction. Incoming calls and information on the device operating within the vehicle poses a source of distraction.”

So even if he didn’t touch the phone until he was pulled over, simply leaving the phone turned on in the console area was sufficient to enable access to the information on the phone and, therefore, Mr. Tang violated the restrictions on his licence.

Are restrictions the same for Class 5 drivers?

If Mr. Tang had had a Class 5 licence, it is likely he would not have been found guilty of using an electronic device while operating a vehicle. Class 5 drivers are permitted to have electronic devices within view so long as they are firmly fixed to the vehicle in a position that does not obstruct the view to the front or sides. They may also use hands-free communication if it only requires one touch to start, accept or end a call.

What can we learn from this? Well, for one, if you are an ‘N’ or ‘L’ driver, it is best to have your phone securely put away while you are driving. Courts can find you in breach of the Motor Vehicle Act for simply having the phone in a position where you can access its information.

So although pulling over safely to the side of the road would be perfectly acceptable for most people, Class 7 drivers need to be wary of the added restrictions placed upon them.

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