Fighting a ticket about holding a cell phone

In My Humble Opinion
1

Recently, I received a ticket for violating Section 78.1 of the Ontario Highway Act, which says:

My car has a built-in Bluetooth hands-free system that connects to my iPhone which I keep in my pocket while I’m driving. When I was deciding which car to buy, it was important to me to get a good implementation of Bluetooth dialing. In the car that I chose, I can access all phone functions from the steering wheel or by using voice-recognition. There’s also a display in the dash that shows my phone list and the cell service signal strength.

I was driving when I noticed that I had no signal strength. I wasn’t sure whether the problem was with the Bluetooth connection or with my iPhone. At the next red light, I grabbed my iPhone out of my pocket and I looked at the signal strength. (I could have waited to arrive at my destination before starting to diagnose the problem, but I was curious, it took only two seconds while waiting at a red light, and I was going look after the problem when I arrived at my destination in about five minutes.) There was a police cruiser right next to my car and the officer motioned me to pull over.

I told him that my car has built-in Bluetooth and that all I was doing was checking the signal strength. He said that I violated the law because I was holding a hand-held wireless device, and he gave me a ticket. He said that I shouldn’t be checking the signal strength while driving.

Okay, I see that I violated the letter of the law, but it seems crazy to get a ticket for looking at a cell phone when I was not using it, had not used it, nor had any intention to use it. (But, I can appreciate the argument that, if I wasn’t planning on fixing the problem while driving, why was I diagnosing it while driving?)

I have scheduled a “First Attendance” to discuss the charges with the prosecutor. If we can’t come up with a suitable resolution, then the case will proceed to trial. My basic argument will be that the ticket violates the basic intent of the law, which is to make streets safer by minimizing distractions while driving and to punish those drivers who endanger themselves and others by driving while distracted by holding and talking on a phone. I think that the legislators put a reference to “holding or using” to avoid someone getting off on a technicality, namely, they were talking on the phone for several minutes but, at the moment that a police officer saw them, the phone call was over, so they weren’t “using” the phone.

So what did I do wrong? I deliberately chose a car that offered the least distracting way of talking while driving. (I realize that in some jurisdictions it is against the law to use a cell phone while driving, regardless of whether the phone is hands-free. But, that’s not the case in Ontario.) It seems to me that holding and looking at a cell phone is fundamentally different from using a cell phone, especially when I am stopped at a red light where there is zero danger of causing an accident by looking away from the road for two seconds. (A phone call, though, is almost always longer than the time at a red light, so I can see why it’s still against the law to use a hand-held device while stopped at a red light.)

Also, although using an add-on Bluetooth device is allowed (and even encouraged for those who need to make a phone call in the car), there doesn’t seem to have been much thought by the legislators about the actual use of add-on Bluetooth devices. You can’t dial out “hands free”. At the very least, you have to take one hand off the steering wheel and press a button to re-dial or dial a previously stored number, but for other numbers, you have to pick up your phone and dial, and then have the conversation using the Bluetooth device. In other words, you have to “hold” the phone at some point in the process. Does the law mean that all you can do is receive calls but not initiate a call? If not, then what does “holding” mean in the law that prohibits driving while “holding or using a hand-held wireless communication device”?

And, here’s a nit-picky argument that I’m pretty sure won’t go over well with the prosecutor: What does “using” mean? It is not against the law to use a hands-free device linked to cell phone but, if I do so, am I not still “using” the hand-held device? Does a hand-held device stop being “hand-held” when I am not holding it? If the answer is “Of course not, but that’s not what the law means”, then the question is: What does the law mean, and is that meaning consistent with giving someone a ticket for holding a phone in car and looking at it to check the signal strength?

Anyway, I don’t want to plead guilty. I haven’t had a ticket in over 10 years and I feel that I should not have the violation on my record.

Any suggestions about what to say to the prosecutor?

2

I don’t know. I think the ticket is legitimate according to the law. Even though you weren’t speaking on the phone, you were still “using” it. You could try arguing your case but I wouldn’t be too hopeful of having it go your way. The judge might throw it out though based on your previous driving record.

3

If I understand it, you were stopped at a red light when you had the device in your hand. How can that be called “driving”? If it is, then is stopping by the side of the road to read a map or eat lunch also “driving”? Then I guess you couldn’t take a nap in a parked car, either, for fear of being called an inattentive “driver”.

4

There’s an exception in the statute to cover that:

When you’re at a traffic light, you could start driving again at any time, still holding the device.

5

Giles, the statute says “if* all* of the following conditions are met”.

The traffic light wasn’t “off the roadway” and the car wasn’t “lawfully parked”.

Thanks anyway. :slight_smile:

6

Giles is agreeing with you. He’s saying that Musicat’s scenarios don’t apply, because taking a nap in a car or being legally parked on the side of the road meets all 3 conditions, where’s stopping at a red light does not.

7

Guilty as charged.

It doesn’t matter whether you were checking the signal strength or reading a text message, you had your wire-less device in your hand while operating a motor vehicle. All intentions aside, that is what you were doing.

I wouldn’t waste money fighting it. It seem very clear cut to me.

8

As a pedestrian, let me say this:

If you were in your car, the engine was running, and you moved your attention from the road to your cell phone, you should not fight the ticket.

The nitpicks about what defines “using” a phone and “driving” come across as attempts by you to talk your way out of a deserved penalty. “Hit by car” is going to be the same to me no matter what you were or weren’t technically doing.

9

Usually I’d be with you given I hate people using cell phones while driving, but not this time. The OP was stopped at a red light when s/he looked at it.

10

I vote for you deserve the ticket. The cops should not have to determine was the phone switched on, was he idling versus moving etc.

Full disclosure: I am radically opposed to cellphone use in cars. I have seen studies that indicate even hands-free devices divert attention more than even holding a conversation with someone who is physically in the car. I could probably find one if I Google it right now, but I’m about to head out.

11

A handful of times, I have been in crosswalks, walking in front of stopped cars whose drivers would lightly press on the gas pedal in anticipation of the light turning green. They were distracted by their phones or their passengers, and presumably relying on peripheral vision to detect when cars stopped or started moving. They didn’t see me (a smaller figure) at all.

Needless to say, this is extremely dangerous for pedestrians, who are in the middle of a street and have limited escape ability or options.

I know not everyone is a dickhead driver, but I have no way of discerning those who are from those who aren’t. As a matter of personal safety, I have to assume everyone’s as bad as the worst.

12

I’m on the side of those who feel that you deserve the ticket. You were looking down at the phone when you received the ticket. That’s not a technicality to me. It is just that diversion from attention that causes accidents. It doesn’t matter whether you intended to actually talk on the phone or not.

13

Different jurisdiction obviously but I got booked for the same thing a while ago. Chatting to the cop while he issued the ticket he told me that the offence was committed “as soon as you took the phone out of your pocket. Even if you been going to throw it at someone, you were “using” it.”

What did you expect, that the cop should follow you to see if you put it away? Like me you were too distracted by the phone to even notice that there was a cop around, so do what I did and just accept it. And stop using your phone while driving.

14

My two cents.

IMO you are better off admitting you were technically (or actually even) violating the law but not the spirit of the law (assuming you were safely stopped blah blah blah).

IF you do that, the judge may reduce the charge or just give you a warning.

OTOH, IMO if you actually try to pull some slick legal wrangling to prove your technical innocence, I think the judge is just going to nail you.

15

Question for those who see him as 100% guilty, off with his head, etc. [Devil’s Advocate Mode]

Should someone also be penalized if they reach over (at a stop light remember) to change the AC settings or turn up the volume on the radio? After all, their attention isn’t on the road at that moment (even if the car is motionless). I say this as someone who doesn’t like to use a cell phone while driving (seeing as I drive stick, it would be problematic anyway) and finds the general practice of doing so by other abhorrent.

16

I’m really glad you got the ticket and posted about it because I would never have imagined the law would be intepreted this way. I guess I’ll stop checking msgs at red lights.

17

Except that you fiddle with the AC for a minute tops, while dudes blather on and on and on for hours on their phones, which after a while cause them to drift off into a sort of zone where they have no fucking idea of what is going on around them- they start driving slow and weaving a bit. If anything comes up, they will crash. For some reason, this zoning out does not occur when talking with a passenger.

The use of the Hand-free does not make the call any less distracting, all it does is make sure you have both hands ready. As has been seen, the “hands-free” laws do not seem to be reducing accidents much. What is needed is “no talking on the damn phone already” laws- and mostly, the hands-free laws seem to be precursors to such laws. Of course the cell phone providers are fighting such laws tooth and nail.

Thus, even with a hand-free device, you are driving stupid if you talk on the phone while driving. Thereby the ticket is richly deserved. IMHO.

18

While I agree that the law as written is a bit overboard (so what is the difference between say, reaching into your pocket and handing your cell phone to your passenger, and reaching into your pocket and handing your passenger, oh say, a pen? Other than handing them the cell phone gets you a ticket?)
I am reminded of what a cop buddy of mine told me once.
“If you get a ticket you think you did not deserve, think of all the times you deserved one and did not get one.” I don’t know about you, but I am way, way ahead on that deal. :wink:
My advice? If you can afford the time off, go to court, perhaps the judge will knock down the fine. If you can’t get the time off, pay the cite and move on. I doubt you can get it dismissed.

19

It’s because a passenger will subconciously tune his conversation to the surrounding road. While the passenger may be fully animated at a stoplight, he or she will automatically slow down once they start moving, stop when things get hairy, and otherwise help the driver pay attention when he or she needs to. The person on the other end of the phone, not being able to see the environment directly surrounding the car, cannot do such things.

20

Same here. You were operating a motor vehicle on a public road at the time. That you were stopped at a red light is irrelevant as is the action you were just looking at the phone to view signal strength. That action means you were “operating” the phone. Suck it up. Pay the fine. Move on.

FYI - Washington State just went live this week with its new hands free law. Previously, operating a cell phone while driving was a secondary offense. The police had to cite you for something else in order to cite you for operating a cell phone. This week the law went into effect making it a primary offense. The entire Left Coast is now a primary offense. The Washington State Patrol issued an advisory about the new law. You will be cited if your vehicle is on the public right of way and you operate a cell phone. It does not matter if the vehicle engine is on or off, nor if the vehicle is moving or stopped, or even parked. You must be off the public right of way completely to operate a cell phone in a vehicle as the driver.

Full disclosure: I’m also opposed to cell phone use in a vehicle. I also work for an employer that prohibits use of a cell phone similar to the requirements of the state law. My employer also goes further and prohibits us from talking with anyone who may be on using a cell phone while in a vehicle and “driving.” So I could be on a landline talking with someone else. If they are on a cell phone, I’m required to ask them if they are in a vehicle and being a driver (on the right of way or not, moving or not). If so, I am required to terminate the call. If I violate my employer’s direction, I’m subject to fines up to $5,000 and six months in jail. I could also be removed from my job. I work for the feds.