This is a really common explanation for why people have their cell phone in their hand when stopped by police. A lot of people think that they cannot be ticketed for using a cell phone while driving if they are not actually using any of the cellular or internet services. This is a common misconception.
The Motor Vehicle Act sections on cell phone use set out very clearly what it means to be using a phone while driving. Use is a term defined in the Act to mean one of four things: holding the device in a position in which it may be used; operating one or more of the device’s functions; communicating orally with another person; or watching the screen of the device. It’s tough to find, but you have to look at the Use of Electronic Devices While Driving Regulation in order to learn all the definitions of use. Operating the functions of the device includes changing the music. And you are also required to hold the device in a manner in which it may be used to change the music.
If you are using a hand-held audio device, it has to be securely affixed to the vehicle and transmitting the music through the vehicle’s speakers in order to be lawful. So even if you are changing the music on your iPod, and not an iPhone, if you’re holding it in your hand or playing using the device’s speakers you are violating the law.
I wasn’t holding a phone, it was my wallet
My reaction to this defence has always been something akin to this. It just doesn’t work. It raises the obvious question of “why the heck would anyone drive around with their wallet held to their face and their mouth moving?” It is completely unbelievable. Unless you were actually holding your wallet to your face, I’d recommend not advancing this argument. You’ll be laughed out of court.
Don’t believe me? Well, there’s a reported decision involving a man who actually tried to make this pitch to the Justice of the Peace. This was what she ultimately ruled upon hearing the argument:
Finally, although this of lesser consideration in my decision than what I have recited above, I would estimate that I have heard the same explanation from male drivers at least a dozen times in the past couple of years and am somewhat skeptical when I hear this defence from male drivers who claim they were holding their wallet to their ear. It is a practice that holds no logic.
And I think she is absolutely right to have come to that conclusion. This common explanation is without merit, and will not result in an acquittal in traffic court.
It wasn’t a phone but an iPod or something else
All drivers should spend some time reading the electronic device regulations in order to understand what electronic devices are prescribed by the law. The definition is very broad. All handheld devices that have a hands-free function fall under the definition, as do GPS devices, any device that can compute data (yes, this could mean a calculator), hand-held audio players, hand microphones, and televisions.
The idea of proving that a cell phone is a cell phone and not a calculator or some other piece of electronics was discussed in a case called R. v. Schull. There, the lawyer for Mr. Schull had argued the officer had to establish it was a cell phone. The Court considered the regulations and determined that so long as it was an electronic device, it was unnecessary to prove which subsection it fell under. Mr. Schull was convicted. You’ll note there is also a funny quote from an Ontario case about how stupid it is to suggest someone is driving around, talking, with an object held to their face.
So if you’re planning to argue that your electronic device was not a cell phone, you have to be familiar with the broad nature of the definition. The “It was an iPod” excuse does not and cannot work under the law.
It was in my cupholder/on my lap
Many people are unaware that hands-free devices cannot simply be sitting loose in the vehicle. GPS devices, cell phones with bluetooth, and other devices must be mounted. Cell phones, pursuant to the Regulations, must be securely installed on the vehicle or the driver’s person, within easy reach of the driver’s seat, and must require only one touch to begin or end a call. Earpieces may only be worn in one ear.
I’ve also seen lots of cases where people argue that they were “hands-free” because the phone was tucked under a hat, tucked into a hijab, niqab, or turban, or somehow wedged into the driver’s clothing. That does not meet the definition of “securely installed” as contemplated by the Motor Vehicle Act.
I see the police driving with their cell phones all the time
This doesn’t matter. There are exceptions in the Motor Vehicle Act to people who are bound by cell phone laws. Police officers, paramedics, and firefighters are all exempt from the prohibition against using their cell phones, provided they are engaged in their work-related duties. And there are valid reasons for these exemptions. Emergency personnel need to be able to quickly respond to situations, and can sometimes be on the phone with other members or victims getting a moment-by-moment update on situations.
The police and other emergency personnel are not allowed to be using their cell phones to have personal conversations while driving, and the hope is that they will follow these regulations. They are not above the law, but fall under the law as an exempted class of people because of the nature of their work.
It’s no more dangerous than if I were reading a book
Yup, and you shouldn’t read a book behind the wheel either. While there are no provisions in the Motor Vehicle Act that address reading books while driving, this compelling piece from SenseBC outlines some of the ways in which this type of behaviour has always been covered by existing traffic laws. There are provisions like driving without due care and attention and driving without reasonable consideration that would encapsulate someone foolish enough to read a book while driving.
It’s also arguable that reading a book while driving meets the definition for the criminal offence of dangerous driving. The standard that the Crown has to prove for dangerous driving is that the driving was a marked departure from the standard an ordinary driver would use. I cannot see why any ordinary driver would think it sensible to read a book while driving (though if you ask me about some of my teenage driving habits, I’d have to admit to this one) and so I think the conviction could be made out on that basis.
I have an “N” and I didn’t know I couldn’t use a phone at all
Ignorance of the law is no excuse. If you engage in a regulated activity, such as driving, and you are licensed to do so, you are expected and presumed in law to be aware of the conditions of your license. There is one particular Justice of the Peace in the Vancouver traffic courts who will quiz Class 7 drivers (N drivers) on the conditions of their license before they leave court. You do not want to be the person who forgets their conditions.
It’s also pretty difficult to argue that you do not know the conditions of your license when they are printed on the back of it.
I was stopped and not moving
The provisions of the Motor Vehicle Act that apply to cell phone use are not limited to when you are actively driving the vehicle. You can only use the electronic device if you are lawfully parked off the roadway, or lawfully parked on the roadway and not impeding traffic. This means that if you are at a red light, you cannot use your cell phone.
Someone recently asked me about why there were prohibitions against using electronic devices at red lights, since you aren’t engaged in operating the vehicle. I explained that the obvious reason for this is the risk created by a vehicle stopped at a red light not paying attention when it turns green. It creates a greater risk for traffic behind to rear-end the stopped vehicle or another vehicle. It also creates a risk that a left-turning car will decide to proceed and the stopped vehicle suddenly begin to drive, causing a collision. You need to be watching an intersection when you are stopped in order to make assessments of when it is safe to enter the intersection. You cannot do that if your attention is focussed on a cell phone or other electronic device in your vehicle.
So if I get a cell phone ticket, am I screwed?
Absolutely not. An experienced and knowledgeable traffic court lawyer will not advance pointless arguments. There are defences to cell phone and electronic device tickets, and there are ways to attack the reliability of the officer’s observations in a smart fashion. I have successfully resolved countless tickets, including electronic device tickets, for my clients and am happy to talk to you about your case. So give me a call and we can talk about how I can help you defend yourself in court.
I will not, however, run an argument that you were just having a quick chat with your wallet.