NIP for using handheld whilst driving - Mobile phone log says I didn't

Mr_Incredible

So last night on the way back from work I was driving in crawling raffic and my mobile was poking into my right thigh.

I used my right hand to remove it from my pocket, allways kept one hand on the wheel and I drive an automatic BMW.

rested it on my lap and when I went to lift it onto the recess bulkhead where the sat nav thing is, I prefer it there because I can see out corner of my eye on reflection who it is thats calling.

I have a bluetooth hands free by the way

At that point police officer ran out an started banging on my window and got me to pull over.

Anyway I was given an NIP which is £100 and 3 points on my license, if I accept it.

Sometime after the event last night I called my mobile phone provider O2 who have given me a breakdown of call log by email.

The incident at written on the ticket is at 18:00, the times in and around that where I had actually used my phone are 16:06 and 19:06.

The call log proves I was not using my phone.

When I stepped out of the car the officer asked me "were you making an emergency call on your mobile" I responded "no".

Later when he tried to get me to sign his slip I read what he'd wrote and asked why he had not recorded I had told him I wasn't using my phone, he said that I'd only said I wasn't making an emergerncy call.

I re-asserted that I hadn't used the phone at all.

Does anyone here have any experience of this, the officer was quite vile and it seems like a crap shoot which presumably most people just cough up and pay because they are afraid of going to court.

I don't idealy want to go to court but will if I must. So I'm hoping to be able to convice the Traffic Criminal Justice Unit before hand not to waste tax payers money.

Any advice welcome

d123

Mr_Incredible wrote: »

The call log proves I was not using my phone.

Unfortunately it doesn't, so don't try and rely on it as a defence, you could have received a call or text message, sent or received a whatsapp message or made use of data for any other reason and it wouldn't show up on a call log. All constitute use.

neilmcl

If you can prove that you weren't "using" the phone then don't accept the FPN and take it to court. Might be worth asking over on pepipoo forum site.

Mr_Incredible

d123 wrote: »

Unfortunately it doesn't, so don't try and rely on it as a defence, you could have received a call or text message, sent or received a whatsapp message or made use of data for any other reason and it wouldn't show up on a call log. All constitute use.

The log shows and texts or received calls.

As for data I didn't switch the phone on.

My car has blue tooth hands free and it's automatic

Quentin

Get proper legal advice before deciding what to do over paying the ticket v going to court. (Your only choices)


(Either pepipoo or your solicitor)


(Though your o2 record won't prove anything)

Mr_Incredible

Spoke to a solicitor, they have told me to contact O2 for a details report that would be admisable.

That will help and possibly bat this away

Its not enough that you were holding a phone, you have to have been using it and the burden of proof is on those prosecuting.

The burden is on them and as I can prove I wasn't using it then I don't see how they can

I think people just generally fold and pay and thats what they rely on

Car_54

Mr_Incredible wrote: »

Spoke to a solicitor, they have told me to contact O2 for a details report that would be admisable.

That will help and possibly bat this away

Its not enough that you were holding a phone, you have to have been using it and the burden of proof is on those prosecuting.

The burden is on them and as I can prove I wasn't using it then I don't see how they can

I think people just generally fold and pay and thats what they rely on

The report may be admissable, but it doesn't prove much. It will only show that you didn't make or receive a call or test. But you might have been reading or composing a text, adjusting settings, playing a game, etc.

The court will have the officer's sworn testimony that you were using it, and yours that you weren't, and will have to decide who to believe.

TonyMMM

Mr_Incredible wrote: »

Its not enough that you were holding a phone, you have to have been using it and the burden of proof is on those prosecuting.

Very true - but the problem is that "using" is not defined in the legislation and the interpretation can vary between different magistrates and courts.

So, picking up the phone to see who's calling or to look at the screen for any reason may be treated as using, so may writing a text (even if you don't send it, which therefore doesn't show in the logs) , using the satnav function or lots of other things. The log only proves you weren't engaged in a call, nothing else.

You have the right to decline the offer of the FPN and take it to court - but you need to be aware of the risks (increased fine) of doing so.

Mr_Incredible

Car_54 wrote: »

The report may be admissable, but it doesn't prove much. It will only show that you didn't make or receive a call or test. But you might have been reading or composing a text, adjusting settings, playing a game, etc.

The court will have the officer's sworn testimony that you were using it, and yours that you weren't, and will have to decide who to believe.

Playing a game lol

Actually all it says on the FPN in type is "was seen in circumstances that gave me reasonable cause to believe that the offense above was being or had been committed.

Its funy he never actually said "I think I saw this, or my colleague says that"

Just asked me, were you using a phone for an emergency, to which I replied no.

Never even asked me if I was using my phone?

The point is the burden of proof is on them

Strange event in ay case

Mr_Incredible

TonyMMM wrote: »

Very true - but the problem is that "using" is not defined in the legislation and the interpretation can vary between different magistrates and courts.

So, picking up the phone to see who's calling or to look at the screen for any reason may be treated as using, so may writing a text (even if you don't send it, which therefore doesn't show in the logs) , using the satnav function or lots of other things. The log only proves you weren't engaged in a call, nothing else.

You have the right to decline the offer of the FPN and take it to court - but you need to be aware of the risks (increased fine) of doing so.

Its weird, they never even asked to look at the phone, not once, the guy asked to sit in the passenger seat and I said no, we can stand at the pavement. He did go through the usual checks o the car and went and visually inspected from the passenger window, asked me if it was auto (can't have looked too hard).

Whole thing was surreal

TonyMMM

Mr_Incredible wrote: »

Its funy he never actually said "I think I saw this, or my colleague says that"

The detail of what was seen will be covered in his witness statement, which you will get a copy of if/when you elect for a trial at court.