The defences available to you if you use a phone while driving grow thinner ever day. You may have heard about phone disabling software you can use while driving. In fact, ICBC even tested an app that would block the use of hand-held devices while driving. The question is: is such software a valid defence to distracted driving?
The B.C. Court of Appeal recently ruled that having phone disabling software is not a defence against use of an electronic device while driving.
How does phone disabling software while driving work?
There are apps available that prevent you from using your phone while a vehicle is in motion. Newer Apple phone models come with a feature that can tell when you are in motion which then blocks you from using the device.
The app ICBC trialled used telematic technology which involved fitting vehicles with a small device that plugged into the car. The device would then communicate with an app installed on the driver’s phone.
Disabling software and ‘use’
The question of whether phone disabling software is a defence against the offence of use of an electronic device has been up in the air for a while. Central to the issue is the definition of ‘use’ when it comes to distracted driving.
The Motor Vehicle Act states a person may not use an electronic device while operating a vehicle. It defines ‘use’ as holding the device in a position in which it may be used or operating one or more of its functions.
So the question is: can you still use a phone while driving if it has disabling software?
R. v. Tannahuser
The accused in this case, Patrick Tannhauser, was previously acquitted of the use of an electronic device while driving at provincial court. That decision was upheld at B.C. Supreme Court. The Crown, however, appealed and brought the case to the Court of Appeal for B.C.
A police officer observed Mr. Tannhauser driving while holding a cell phone at the top of the steering wheel. The accused did not dispute he was holding the phone but he testified that his cell phone had software that disabled its functions when in a vehicle in motion.
At the initial trial, the judicial justice ruled that Mr. Tannhauser was not holding the phone in a position in which it may be used as the disabling software precluded the possibility of him operating any of its functions.
The B.C. Supreme Court shared this view, essentially finding that the software meant the phone was not an electronic device according to the legislative definition.
Court of Appeal verdict
At the Court of Appeal for B.C. two key issues arose:
- Is a cell phone with no immediate functionality an electronic device? And,
- Can a cell phone with no immediate functionality be held in a position in which it may be used?
On the first issue, the Court found that the cellphone in this case was still an electronic device. The judge determined that the device was only temporarily without functionality and retained the possibility it could become fully functional. Therefore, it still met the provisions of an electronic device.
“A lamp unplugged”, the judge said “is still a lamp; a cellphone turned off (or with the phone function otherwise disabled) is still a cellphone.”
Regarding the second matter, the appeal court judge ruled that a cellphone with disabling technology can still be held in a position in which it may be used.
The judge said: “ If the legislature intended to allow individuals to hold electronic devices without immediate functionality in positions in which they may be used, it would have made such an exception explicit.”
Where does this leave us?
The decision clears up some legal issues surrounding the use of phone disabling software while driving. While it provides some answers, the decision is bound to disappoint some people with this feature on their phones. Not least ICBC which has already demonstrated support for phone blocking technology.
