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

Spicy_McHaggis

arcon5 wrote: »

So the policeman says 'i saw him using a mobile phone'
judge says 'was you using a mobile phone sir'
Op 'no'
judge 'where was your phone at the time of the alleged incident'
op 'on my leg' or 'in my hand'

well ops defence may create doubt, but is it BEYOND reasonable doubt.
especially since the above questioning is hardly going to fill you with confidence.

risk:reward ratio isn't right imo. I'd pay it.

That doesn't matter, all he needs to do is create doubt on the balance of probability.

dunroving

Hmm, all this discussion got me to thinking ... is it illegal to use a GPS while in control of a car?


(presumably not, but there's a lot in common, in terms of distraction, cognitive demand, complex motor coordination, etc.)

Joe_Horner

Richard53 wrote: »

I don't know the technicalities of this, but presumably the phone provider can only supply data that is generated from using the phone aspect of the device (calls, texts etc). You can do a lot with a smart phone without using the phone part - play games, look up contacts, play music, watch stored TV programmes, videos etc (in fact for some of my colleagues, this is probably 95% of their phone usage). Presumably all this comes under the category of 'using a mobile phone', and the provider's report is therefore not sufficient to prove or disprove anything. Happy to be educated on this, though.

That sums it up quite nicely! There are two main problems for defending this from the OP's position.

The law doesn't define "use" and isn't clear on whether using non-communication functions are included. You'd think they would bem but the Act can be fairly read either way - hence Jimmy Carr's acquittal. Unfortunately, his case didn't set a precedent because it was only in magistrates court.

It's a shame in a way that the CPS didn't appeal the verdict in order to get a definitive ruling either way - it also suggests that they weren't 100% confident they'd win seeing as it's undoubtedly in the public interest to have such confusion cleared up!

The other problem is that, like it or not, introducing reasonable doubt at magistrates court isn't always enough. Using it in some way that leaves no trace at all (such as selecting songs on an MP3 function) can't be shown to have happened.

Even if there was precedent to say that amounted to "use" under the Act, all that can be said is "well, he might have been doing that and we can't think why he'd be holding it if he wasn't using it".

If he then says "I was holding it to move it from my pocket to the dashboard because it was uncomfortable" then that does introduce reasonable doubt - their only evidence is that they saw him holding it and he has a reasonable alternative explanation for what they saw.

Remember, the test in criminal proceedings is "reasonable doubt" not "balance of probabilities". So a possible alternative explanation, no matter how unlikely is supposed to be enough to create that doubt - especially when the only evidence for the prosecution is "I saw him holding it". You can have a situation where "he was almost certainly using it, but he might just have been moving it" and that should be an acquittal.

But a magistrate may still convict, and appeals get very expensive very quickly!

Iceweasel

Despite being told several times the OP still has not taken on board the impression that most people - including a magistrate - will pick up on.

Automatic transmission - irrelevant.

One hand on the wheel - negative.

Moving the phone to a position where he can see it 'out of the corner of my eye' to see who is calling - he's sunk is he says this.

Bluetooth/hands-free - possibly positive to show that the OP has made provision to obey the law.

Phone records prove nothing as for example I often have need to check mine for stored data, such as addresses - but I either stop to do so, or get a passenger to check.

I doubt that this will have a happy ending.

AdrianC

dunroving wrote: »

Hmm, all this discussion got me to thinking ... is it illegal to use a GPS while in control of a car?

Not under the "mobile phone" law, but if it could be deemed driving without due care and attention, then absolutely. In addition to not fitting the "interactive communcation" clause, GPS are usually not hand-held, but mounted. It's the hand-holding that's illegal. Fiddle with the keyboard/screen of a phone in a holder, and it's legal.

dunroving

AdrianC wrote: »

Not under the "mobile phone" law, but if it could be deemed driving without due care and attention, then absolutely. In addition to not fitting the "interactive communcation" clause, GPS are usually not hand-held, but mounted. It's the hand-holding that's illegal. Fiddle with the keyboard/screen of a phone in a holder, and it's legal.

Ah, OK, that's interesting, did not know that. Mobile phones and GPS didn't exist when I passed my test!


Generally, when I am driving, I drive. Exceptions are for altering controls on heating, radio, and other car-mounted gadgets and even then I usually stab the button for the other station or quickly turn down the AC temperature, and that's it. If I am in ANY sort of driving situation that requires attention such as moving traffic, manoeuvring, etc., that's all I focus on.


I see an awful lot of people on my way to work every day (an hour stuck in traffic) using phones. It's quite comical to see the various ways they try to disguise it, and if they ever detect someone watching them, their attempts to pretend they are doing something else are equally comical.

paulsad

Have you not heard of the latest devices available?

MacMickster

dunroving wrote: »

Generally, when I am driving, I drive. Exceptions are for altering controls on heating, radio, and other car-mounted gadgets and even then I usually stab the button for the other station or quickly turn down the AC temperature, and that's it. If I am in ANY sort of driving situation that requires attention such as moving traffic, manoeuvring, etc., that's all I focus on.

95% of people on this forum (me included) will have exactly the same attitude. Others, like the OP, will try to find ways to justify their differing attitude.

If someone has a hands-free system within their car, but likes to see who is calling from their handset, then surely they should be in the habit of placing their handset in an appropriately positioned cradle BEFORE placing their keys in the ignition at the start of every journey.

The advantage of having an automatic gearbox is that it enables you to keep both hands on the steering wheel - not to free up the left hand to do something else.

I suspect that the OP has already decided to take this through the courts, and is merely seeking some concurring viewpoints from a few barrack room lawyers on an anonymous internet forum to back up this decision, so OP, I am a qualified barrack room lawyer and in my considered opinion you should fight this all the way (and while doing so sell your mobile phone to help cover the costs).

redux

IanMSpencer wrote: »

What the OP doesn't realise is that if he explains himself in court the way he has here, he will probably confirm the policeman's view that he was using the phone.

Absolutely.

The test isn't whether a call was in progress, but whether handling the device was a distraction from the task of handling the vehicle.

Someone might for example be checking an old incoming text message for an address they are heading towards, and nothing in the mobile network's usage records is going to prove or disprove what the policeman says he could see.

The OP doesn't even fully understand the policeman's question was an emergency call being made. The policeman sees someone apparently using the phone, and an emergency call would be valid mitigation for doing so.

The OP's description to us includes getting the phone out of the pocket - which may be a bit fiddly and may also involve temporarily slackening the seat belt - then putting the phone on the lap. Then the belt might be retightened, which explains putting down the phone for a moment. The next action will be to look down to confirm its position before picking it up and moving it again to a mount ...

The right time to do all this is on getting into the vehicle, before setting off.

The OP is convinced this argument sounds like a good defence, but as you suggest to some it will sound like self-incrimination.

TrickyWicky

Mr_Incredible wrote: »

I have hands free blue tooth.

They could cause me of not being in control but I allways gad one hand on the wheel and it's an automatic transmission

And as i've said to you before, harping on about it being an automatic transmission will not help you. Further, having the BT kit fitted (when you claim you were not even using the phone) is also not going to help you. The magistrate will simply see this as an attempt to distract and it will look bad on you.

On top of that, you admit that you had one hand on the wheel - when you had no reason to use a gearstick - this does not look good.

You have to keep this simple: Create reasonable doubt (phone records) and attempt to discredit the police officer. Attempting to credit yourself with an automatic transmission and a bluetooth hands free kit that wasn't apparently in use will do nothing for you.

AdrianC wrote: »

No, it does not. All it shows is that the phone wasn't actively making or receiving a phone call or text message or data..

Agreed however unless the policeman is willing to lie and exagerate his claims then he can only realistically say that he saw the motorist holding the phone for a few seconds while repositioning it. Having his phone on his lap is not unlawful so this is meaningless from the prosecutions POV.

Spicy_McHaggis wrote: »

It would be interesting to see the result of the OPs speeding case in 2012 he was certain of winning.

Why? Does that make him guilty as sin? Realistically you're looking to tarnish the op and make people think he is guilty and thats not a very nice thing to do. The op has come here and asked for advice, explained his situation, what happened and how to deal with it. Granted I do find the "where i could see who's calling" and "it was turned off" thing to be conflicting however having the phone positioned so that you can see who is calling is not an unlawful act so regardless of being turned on or off, this minor detail isn't really important.

So to recap: having the phone sat on his lap: lawful - hand use is what counts
phone records that create reasonable doubt: hopeful
making sure that you can drive safely without distraction: lawful

Yes the op should probably have pulled over but we all know there are roads out there that don't allow this with traffic behind you.

Me personally I'd challenge it but then I would be looking to discredit the policeman in every way possible. The op however seems to think that having one hand on the wheel (no due care) of an automatic that is handsfree will save him so maybe he should just pay it.

@Mr Incredible I still wonder why you think the auto and handsfree will save you? - You were not making a call so the handsfree is irrelevant and the auto doesn't have anything to do with a phone either.. so why are you so convinced this will make a difference?