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

IamNotAllowedToUseMyName

(6) For the purposes of this regulation—

(a)a mobile telephone or other device is to be treated as hand-held if it is, or must be, held at some point during the course of making or receiving a call or performing any other interactive communication function;

...
(c)“interactive communication function” includes the following:

(i)sending or receiving oral or written messages;

(ii)sending or receiving facsimile documents;

(iii)sending or receiving still or moving images; and

(iv)providing access to the internet;

So if it was held (which is admitted) while it was providing access to the Internet (let us assume he had not switched off mobile data, so his Samsung S2 - unless he upgraded recently - would be providing access to the Internet), that would appear to be sufficient for the offence to be complete.

OP doesn't agree that simply holding the phone is a problem in law, my point is to note that if you read the law in a certain way, there clearly is a problem in law.

photome

IanMSpencer wrote: »

So if it was held (which is admitted) while it was providing access to the Internet (let us assume he had not switched off mobile data, so his Samsung S2 - unless he upgraded recently - would be providing access to the Internet), that would appear to be sufficient for the offence to be complete.

OP doesn't agree that simply holding the phone is a problem in law, my point is to note that if you read the law in a certain way, there clearly is a problem in law.

why not assume mobile data was turned off?

IamNotAllowedToUseMyName

photome wrote: »

why not assume mobile data was turned off?

Simply to show that quoting the law because you assume it backs your view is to misunderstand how the courts work. There are the written words, and then there is the interpretation of them. You cannot simply quote the law and assume that your reading of the words is how the law will be applied.

For example, it may be that the courts would hold that simply handling a phone to move it, while not actively interacting with it is not sufficient to break the law, but a rigid reading of it suggests that simply handling a phone that is connected to the Internet is sufficient, whereas an old Nokia without Internet connectivity would require you to be actively doing one of the proscribed tasks, unless it was in a hands free system which is ok.

Interestingly, if you mess with a tablet that did not have mobile internet connectivity and they charged you with that law, you could get off, they couldn't then charge you with driving without due care for essentially the same offence. I know of a as where someone used an old PDA, told the police it wasn't a phone, they didn't listen and he got off in court.

Interesting also that if you messed with an old TomTom, say it fell off the windscreen, they couldn't use this law, but if your phone was just being used with WazeWaze as a satnav and it fell off and you picked it up they could.

DUTR

IanMSpencer wrote: »

Simply to show that quoting the law because you assume it backs your view is to misunderstand how the courts work. There are the written words, and then there is the interpretation of them. You cannot simply quote the law and assume that your reading of the words is how the law will be applied.

For example, it may be that the courts would hold that simply handling a phone to move it, while not actively interacting with it is not sufficient to break the law, but a rigid reading of it suggests that simply handling a phone that is connected to the Internet is sufficient, whereas an old Nokia without Internet connectivity would require you to be actively doing one of the proscribed tasks, unless it was in a hands free system which is ok.

Interestingly, if you mess with a tablet that did not have mobile internet connectivity and they charged you with that law, you could get off, they couldn't then charge you with driving without due care for essentially the same offence. I know of a as where someone used an old PDA, told the police it wasn't a phone, they didn't listen and he got off in court.

Interesting also that if you messed with an old TomTom, say it fell off the windscreen, they couldn't use this law, but if your phone was just being used with WazeWaze as a satnav and it fell off and you picked it up they could.

Some interesting comments in your post, I'm not surre I agree with the sat nav falling off the screen as ok, I do recall a story of someone being 'done' for eating fruit in their car.
Trouble with the thread though is some are looking for an exception then that can then be used as a loophole

Car_54

IanMSpencer wrote: »

So if it was held (which is admitted) while it was providing access to the Internet (let us assume he had not switched off mobile data, so his Samsung S2 - unless he upgraded recently - would be providing access to the Internet), that would appear to be sufficient for the offence to be complete.

OP doesn't agree that simply holding the phone is a problem in law, my point is to note that if you read the law in a certain way, there clearly is a problem in law.

The offence is defined in section 1 - using the device. It doesn't say what is meant by "use".

Section 6 merely clarifies what is meant by "hand-held". None of that has any relevance to the definition of "use", and in the OP's case there is no question that the device is covered by the regulation.

The question is whether he was "using" it. In the absence of a definition, that's still a question for the court.

Mr_Incredible

As a side note the mechanic that services my car and runs his garage also buys and sells cars. He's constantly on the phone.

Anyway he got pulled for using a mobile while driving. He was holding as opposed to moving his phone, but he had an ear piece in.

He took it to magistrates and won, no fine, no points, no costs.

IamNotAllowedToUseMyName

DUTR wrote: »

Some interesting comments in your post, I'm not surre I agree with the sat nav falling off the screen as ok, I do recall a story of someone being 'done' for eating fruit in their car.
Trouble with the thread though is some are looking for an exception then that can then be used as a loophole

You can be done for driving without due care. Is about getting the correct charge for the offence.

d123

Mr_Incredible wrote: »

As a side note the mechanic that services my car and runs his garage also buys and sells cars. He's constantly on the phone.

Anyway he got pulled for using a mobile while driving. He was holding as opposed to moving his phone, but he had an ear piece in.

He took it to magistrates and won, no fine, no points, no costs.

I doubt it, holding the phone while using it (for any of the uses the law stipulates) completes the offence, the earpiece is immaterial.

Mr_Incredible

^well its just happened

IamNotAllowedToUseMyName

Mr_Incredible wrote: »

^well its just happened

and I do not doubt it. However, what you need to find out is why he was found not guilty, when what you describe is clearly against the law. It can be:

- CPS failed to produce evidence that he was using his phone. This is quite common, the incompetence of CPS barristers knows no bounds (or rather, the barrister gets the pack about 5 minutes before the case, and realises that there is half of it missing so they can't properly go ahead).
- Magistrates disagreed on what using the phone meant, usually when there is an experienced solicitor confusing them. It may be that the use of a handsfree kit made them decide there had not be a breach (though there probably was).
- Someone misled the court as to what actually went on and got away with it.
- Some procedural error.

Chances are that he denied using the phone at the time and the magistrates felt that handling the phone did not constitute use and they felt that the prosecution witness was not convincing on having seen actual phone use.

I've said before that these cases are winnable, but it is a lottery and you'd be wrong to assume you will win because an apparently more solid case has won. For example, it may be that the CPS thought they had an easy case and didn't really work on the evidence of use and it fell apart, whereas with yours, they know that they will have to work on the "what is use?" question as they know you deny using the phone for calls.

Also there might be a change in enthusiasm for prosecuting with the announcement this morning that 1/2 million drivers use their phones in a survey from the DfT to "assess compliance". This might well be a precursor to issuing guidance to courts or changing sentencing guidelines. The chances are it will be 6 months before your case goes to court, plenty of time for some new government enthusiasm to deal with the problem.

In the end, the question is whether it is worth risking an additional £500 of costs against a fixed penalty £100 fine, or getting off but still having your own time and costs.

FWIW, plenty of people do win when people think it is an open and shut case. There was a case recently on Pepipoo where someone fought a speeding ticket and won when everyone was convinced that what he was saying was nonsense (he essentially admitted speeding but disagreed with the speed reading for a long list of what sounded dubious reasons and came up with his own calculation that nobody believed was accurate), and I think that what happened was that bulls**t baffled brains - which does happen.