Q&A - Cell Phone Ticket

Question:

I was ticketed for disobeying a traffic sign (I absolutely did, and take full responsibility for that) and also for "contravening section 25 (15) of the MVA which is violating the terms of my license (Class 7N, GLP program) by 'using a handheld device.'

My problem is my phone was sitting in the centre console, completely dead, and i hadn't touched or looked at it. The officer said simply having access to it / having it in my vicinity is enough for a violation.

I've done all the research i can on the MVA and handheld devices restrictions and i can't see anything, anywhere, regarding 'having access' or it just being in my vicinity. I never touched it and she never even tried to confirm it was on or not, just the act of it sitting there was why she ticketed me.

I'm really concerned this ticket will affect the six month reduction i'm meant to have as a result of the GLP, as my earliest exam (with reduction) is coming up in January.

According to this document regarding handheld usage, the term 'use' clearly implies i must have been holding, touching, operating or looking at it. I was doing none of the above, it was sitting dark and dead in the cupholder in my console.

I'm planning on contesting it but i'm wondering how likely it is i'll beat it. I'm again just really concerned it's going to impact (or take away) the reduction i've been working towards. Prior to this i've a spotless record, i'm due to take my exam in less than a month. :(

Answer:

Here's the restriction that section 25(15) says was disobeyed:

Restriction on use of electronic device while driving

30.072 (1) Subject to subsection (2), a person to whom a Class 7 or 7L licence is issued must not

(a) use an electronic device within the meaning of Part 3.1 of the Act while driving or operating a motor vehicle on a highway, or

(b) without limiting paragraph (a), communicate by means of an electronic device with another person or another device by electronic mail or other text-based message while driving or operating a motor vehicle on a highway.

(2) Subsection (1) does not apply to a person referred to in that subsection if the person uses the electronic device

(a) while operating a motor vehicle that is safely parked off the roadway or is lawfully parked on the roadway and not impeding traffic, or

(b) to call or send a message to a police force, fire department or ambulance service about an emergency.

The reference to Part 3.1 is:

Definitions

214.1 In this Part:

"electronic device" means

(a) a hand-held cellular telephone or another hand-held electronic device that includes a telephone function,

(b) a hand-held electronic device that is capable of transmitting or receiving electronic mail or other text-based messages, or

"use", in relation to an electronic device, means one or more of the following actions:

(a) holding the device in a position in which it may be used;

(b) operating one or more of the device's functions;

(d) taking another action that is set out in the regulations by means of, with or in relation to an electronic device.

Another action set out in the regulations is:

"Use" further defined

2 A person who watches the screen of an electronic device uses the device for the purposes of paragraph (d) of the definition of "use" in section 214.1 of the Act.

Use as defined in 214.1(a) does not specify that the device needs to be operating or even capable of being operated, just that you were holding it in a manner that would allow it to be used.

If you have not "used" the cell phone in one of the ways described here, you are not guilty of the offence. Simply having it in the car with you is not sufficient for the ticket.

You may be able to discuss the situation with the officer and have it withdrawn.

Having the Officer Withdraw the Ticket

If the officer is clearly incorrect in issuing a ticket, you may be able to discuss it with them, prove your point and have it withdrawn without having to go to trial.

If the officer won't agree to discuss it, you may wish to approach their supervisor instead.

Should neither of them be interested in discussing the matter, you will have to go with the dispute.

So with regards to disputing

So with regards to disputing it, how am i best to go about it? She obviously can't prove i was using it (because i wasn't, and because i told her i wasn't and she never attempted to prove that i was).

Again, i'm really concerned at the impact this is going to have on my reduction, and i'm unable to find any information anywhere on if it will. My earliest available exam is January 6th and i'm scheduled for one on January 23rd. Will this new ticket affect that, and if i end up contesting it and waiting a year or more for the court date, what happens then? The GLP was expensive and it's super unfair that getting ticketed for something i didn't even do might screw it up and waste all that money...

Entering a Dispute

The procedure for entering a dispute is shown on the back of your ticket. It will likely take the better part of a year to get into traffic court with it and you should be able to go to your road test and obtain your class 5 by then. You are not considered to have been convicted until after the trial for the purposes of your exams. However, your driving record would show the date of the offence as the date that the incident occurred.

Even better, if the ticket is dismissed, you won't have to worry about it at all.

There are other threads here about dealing with tickets informally, either by speaking to the officer or the officer's supervisor.

I just called and spoke to

I just called and spoke to the Burnaby RCMP (the detatchment that issued me the ticket) and they said i had to formally duspute and not talk to an officer or supervisor. Was this incorrect and would i still be able to have the handheld device infraction withdrawn if i spoke to a supervisor about it?

Too Much Information

Chances are good that you spoke with a non-police person on switchboard that really should not be giving out advice. In this case you should not have explained why, merely asked that the officer (or the supervisor, depending on who you wanted to talk to) call you back and leave your name and number. If prodded for detail, simply say that it is a private matter and you will speak with them about it.

Beware, this is a double edged sword. You can run into trouble with an officer that decides to change the ticket after the conversation to better match the offence as well as one that will only decide to eliminate the inappropriate count.

Called RCMP back

I've gotten her email and will be leaving a voicemail, to i simply state "I'm calling regarding a ticket you wrote me, please call me back at xxx.xxx.xxxx?

Message

Since she is the officer involved, you can leave whatever you wish as a message. It's the switchboard and front counter staff that are sometimes hard to get by and you have to be careful how you approach them. Of the two approaches, I might think about e-mail as you would then have a written record of the conversation. In court it could be used to show the conversation more simply and accurately than by telephone.

Consider this carefully as I am not a lawyer. I almost always point out Lawyer Referral in a longer conversation like this.

Update

She just called me in reply to the email and phone message i left her. She asked what i wanted, and i reiterated a full disclosure of evidence regarding my violation, and any justification she had. She reiterated that "as a Novice driver, having access to any electronic device is violating the terms of the N license" regardless of if it's in use or not. I thanked her, again requested a full disclosure of her evidence against me, and she hung up.

I am documenting all of this in detail for the eventual court date.

So... I guess we wait until court now?

Answer

Aside from planning your defence, that's pretty much it. Just make sure you get your class 5!

I think Anthea has done her research ...

... and based on the information she has presented here, then the police officer would have to be able to produce some compelling evidence that the phone was in recent use by the driver.

For most of us, our cell phones are accessible; if I'm driving, it's in my jacket pocket, or plugged in and recharging on the console; could not be more accessible unless I pulled it out, or picked it up - which of course I'm not going to do unless securely parked off the road.

From interest, what was the highway sign you disobeyed, and why did you do that? You've come so close to two years of blameless driving, and clearly look forward to obtaining your Class 5 next month.

I was leaving Metrotown after

I was leaving Metrotown after some xmas shopping for my family, and as you head northbound out of the parkade there's a lane with a "no left turn" sign.. which i made a left turn into (there was no oncoming traffic and no pedestrians). Stupid, i know. I was in a rush to get home to take my dog out. :(

The other vaguely interesting thing is while i was in metrotown someone took the 'N' off my car, and although the officer acknowledged that i didn't display, she didn't ticket me for it. Kind of strikes me odd that she would try and ticket me for 'distracted driving' as it's the only thing that would seriously impact my license.

Complication

This would also be a violation covered by 25(15) MVA. Does the ticket say anything other than Drive Contrary to Restriction? It should mention either the new driver sign or the electronic device so that you have proper notice of which restriction you failed to follow. If it does not, there is the possibility that you could dispute based on inadequate notice on the violation ticket of what you are being charged with. The other side of the coin is that the officer could choose to use the no new driver sign as the basis for her evidence on that charge. An offence under 30.13 MVAR would be more appropriate for the sign violation:

Offence

30.13 A person commits an offence who fails to display the signs required by section 30.10 (2) or (4).

30.13 has no points for the conviction while 25(15) has 3.

Ticket details

The ticket says:

"Description of Offences:

Count 1: Disobey traffic control device | Section 125 | Fine: $121

Count 2: Drive contrary to restrictions | Section 25 (15) | Fine: $167"

It also lists her badge number (but not her name) and detatchment and etc.

The only thing indicating it's a contravention of the use of electronic devices section of the act is the amount of the fine, $167. If it were failure to display an N, the fine would by $109. As you also wrote, failure to display has no point pentalties associated with it, whereas use of a device has three.

The money isn't entirely the issue here; if it were failure to display an N (even though some jerk took it off my car, again, in Metrotown), it's my fault and i wouldn't contest that. The problem with the electronic device violation is not just the point on my license, it's the fact that the nearly $2,000 spent on the GLP with a certified instructor would be down the drain for something i didn't even do. The ticket wouldn't be $167, it would essentially by $2,167, and if it's affected my ability to get a reduction (which is why i did the damn course) out of her negligence and not knowing the law i've got half a mind to go after her civilly for damages.

I See

It would then be accurate to argue that the intent of the charge was the electronic device, not the new driver sign.

See where the conversation with her goes and if it doesn't work out, ask who her supervisor is so that you can move up the chain. Regardless of how the conversation goes, be respectful, even if you don't feel that way. You are likely going to get what you need more easily than if you get into a heated argument.

I intend on treating her with

I intend on treating her with respect, not only am i aware getting angry and arguing will be fruitless, i've seen enough traffic court and police interaction to know it only goes downhill from there. ;)

My grandfather is a retired JP and traffic court judge as well (you may have even worked with him), i'll see if he has any further advice. Your assitance has been invaluable, thank you so much for having this forum!

Are you aware if these tickets will affect the exam i have scheduled for January? Or does contesting "stop the clock" on them, so to speak?

Interesting!

Ah, good, you really have the inside track here. I knew from reading that you were more aware than usual but didn't think it was my business to ask why. I worked in Penticton from 1988 to 1997 and Parksville from 1997 to 2005, so if your grandfather held traffic court in either place I would likely know him.

Yes, entering a dispute of the allegation does essentially stop the clock as far as your test is concerned until the trial decides the issue.

Submitted by E-Mail

The requirement for a six-month reduction in the N stage is copied here from an ICBC page: "Class 7 or 8 learner’s licence holders who successfully complete an ICBC-approved driver education course will be eligible to receive a six-month reduction in the novice stage if the driver has remained violation and at-fault crash-free for the first 18 months of their novice stage."

Note that this does not say "prohibition" free. So because of the illegal turn violation, the handheld device issue becomes irrelevant to the matter of the six months.

What is more to the point is whether the scheduled road test is more than thirty days after the date of the offence (the illegal turn), because it is my understanding that if a ticket is not disputed, then after thirty days the person is deemed to be guilty.

So will my road test be messed up either way?

I entered a dispute for the alleged 25 (15) violation, but not the other violation. Will the other offense mess up my driver's test..? Should i contest that as well, simply so it doesn't screw up me getting my N? If i accept guilt for that offense the fine is $121 and incurs two penalty points on my license, will that affect me doing my class 5 road test?

No

If you dispute the whole ticket, until it is decided in court, there is nothing for ICBC to take notice of. If you paid the stop sign ticket already and are only disputing the cell phone ticket, then yes, it is possible that you may be in trouble. If you have not yet paid one, then dispute both. You can always pay if you choose to at any time up to the court date. All you risk is the loss of the discount.

GLP

Please don't think of the money spent on the GLP as a waste of money, I'm sure you gained valuable information during this training that you wouldn't otherwise have that will make you a better driver in the future. While 6 more months may seem like a long time to you now it will pass quickly and any time you can get additional training from a qualified professional it's not a bad thing.

Distracted Driving

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