S172(2) alledged offence of using an electronic device whilst driving

Mildly_Miffed

Gerrard00004 said:

To throw even more of a coincidence into the works, that one second when the Police van was over taking me, both the two witnesses (Driver and Passenger) happened to be looking into my vehicle....and were able to see what was on my lap (van to van).

Sorry, where did your lap come into this?

You told us:
The phone was in the cradle.
The phone fell out of the cradle onto the dash.
You picked the phone up off the dash and put it on the passenger seat.

NOW you're telling us that, between the dash and the seat, it sort of somehow came to rest in your lap for just one second?

What a remarkably unfortunate coincidence of timing that that just happened to be while the police van was right next to you. The marked police van you could never have had a hope of seeing before that moment.

But they're the ones driving without any consideration for other road users.

ontheroad1970

I would suggest that this one of those times when you should consider using counsel.  Be suspicious of any solicitor saying they will get you off in a free consultation - remember they get paid win or lose.  Even when being honest (not saying you aren't) you can inadvertently make yourself appear guilty or phrase things in such a way that it makes you look guilty, especially as often police evidence is more difficult to counter since they have no advantage in not telling the truth.  If you accidentally contradict yourself as you appear to have done here, then it can prove fatal.  

paul_c123

Gerrard00004 said:

Thank you all for the time to respond.

In regards to the questions I asked, it was merely to see if it had any weight - before I posted the rest of the documentation - I think it is clear that it wont give any weight to voiding the charge but there is no harm in raising this if I was to plead not guilty.

As mentioned I am charged with Regulation 110(1) of the Road Vehicles (Construction And Use) Regulations 1986, Section 41D of the Road Traffic Act 1988.

Taken from Legislation.gov.uk:

"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;"

and 

"(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 - and at present I cannot find an updated version of this - I am to interpret the above correctly, my act of picking my phone up off the dash board and throwing it onto the passenger seat does not contravene the regulation and therefore no offence committed.

Does anyone disagree? or have more recent information to suggest I am wrong?

Thanks

That's right, but the police are going to say it looked like you were using your phone, and even if you were merely handling/relocating it, you would have to counterargue that you were just relocating it, not using it. I can't provide a link but I'm sure there's been instances in the past, where in court, criminals have lied to try and get off an offence. Its weird but it happens.

You also need to decide if it fell from its cradle to the dash, or your lap.

Also, in my experience, police don't just pass a car and have a glance in, they'll come alongside and stay there for an amount of time, matching their speed with yours. Its possible they were there for a good amount of time before you even noticed, what with you being on the phone etc (only joking).

TheSpectator

Honestly OP, you are digging yourself into a hole. The court are going to believe the word of 2 police officers over you. Rightly or wrongly it's the way it is.

Plead guilty and get the minimum punishment you can. Pleading not guilty and being found guilty will lead to a harsher penalty.

ontheroad1970

OP - do you have any points on your licence already?  No bearing on your case, but on the next steps of you assessing the worth of defending the case.  If you have points on your licence then that may sway you more to taking the risk of defending the case

Gerrard00004

Mildly_Miffed said:

Gerrard00004 said:

As I mentioned, and to which you have quoted I wasn't (my opinion) doing anything wrong. Hence, I wasn't overly concerned about checking my mirrors. My eyes were on the road, I was not increasing my speed, I was not about to break. I wasn't changing lanes, until I did so, which was my nearside mirror. I was driving a van with a bulkhead so the Police van may have been behind me for a while before it over took me.

You're completely missing the point...

Let's make it easy:
When do you need to use your mirrors to be aware of other traffic around you?
Your answer: When you're about to make a manoeuvre.
Everybody else's answer + Highway Code: All of the time that you're driving.

If you have a permanent picture in your head of the traffic around you, you only need quick mirror glances to confirm it and and add/remove detail.
If you don't, then when you realise you need to look, you have to build the whole picture afresh. It takes longer and more focus to do so.

Now let's say something happens ahead of you... When you should just be taking a quick glance to confirm what you already know, to evaluate your options to avoid that situation, then instead you're having to take your attention away from the situation.

The fact you're in a van with a bulkhead simply means you don't have the interior mirror available, so can only use the two door mirrors to build that picture in your head. If you aren't sure if another vehicle's close behind you, adjust your road position slightly so that you can see. If you don't understand how only having door mirrors can still give you that full picture, then driving a van is probably not for you.

The fact you're in a van with a bulkhead also means that when the occupants of this marked police van saw you manhandling your phone (which you don't deny), then they really should have been BLINDINGLY OBVIOUS to you, because they weren't just in your mirrors, they were in your clear view to the side. But you were just staring straight ahead out of the windscreen with whatever remaining portion of your attention was still on your driving, and hadn't even noticed their existence as they approached, pulled alongside, started to pull ahead... This would have been blindingly obvious to them, hence the assumption that you had been using the phone they saw in your hand. An assumption that is accurate far more often than it is not.

You say it was not accurate this time.

It clearly makes a difference to the substance of the charge you state.

Your defence is "I wasn't using it. It fell from the cradle onto the dash, and I was moving it to the passenger seat". As defences go, it's slightly better than "the dog ate my homework, miss."

Most importantly, I suggest that the difference is irrelevant when it comes to the actual road safety situation.

You were clearly not paying proper attention to driving, and got caught red-handed doing so... with a phone in that hand. You're lucky the outcome was a stop, not a collision.

Do NOT waste everybody's time by playing picky pedant with fine paperwork detail of dotting i and crossing t and querying punctuation. You were seen at the time. You agreed you were driving the vehicle at the time when you returned the s172. Nobody denies that. It will not impress the court, it will not invalidate the charges, and it will simply make you look like you're trying to escape the consequences of your actions. It will also give them even more reason to cast doubt on your actual defence, because it will simply make you look even more like somebody who can't just admit when they got caught.

There is a huge lesson for you to learn here - but right now you seem to be denying the requirement for any lesson at all.

Morning, again thanks for your post. If anything you have allowed me to educate myself further by cross checking your points.

If you are going to pull me up please quote me directly and please respond directly.

"Let's make it easy:
When do you need to use your mirrors to be aware of other traffic around you?
Your answer: When you're about to make a manoeuvre.
Everybody else's answer + Highway Code: All of the time that you're driving."

In the post you responded to, I actually referred to the Highway code best practice. however, you chose to be condescending and not provide the full text of my answer or put it into context with your "everybody else's answer". 
I am well aware of the need to regularly check my mirrors but in order to be educated further by yourself, can you please tell me how often? do I just twitch constantly, maybe not even look at the road ahead.

"The fact you're in a van with a bulkhead also means that when the occupants of this marked police van saw you manhandling your phone (which you don't deny), then they really should have been BLINDINGLY OBVIOUS to you, because they weren't just in your mirrors, they were in your clear view to the side. But you were just staring straight ahead out of the windscreen with whatever remaining portion of your attention was still on your driving, and hadn't even noticed their existence as they approached, pulled alongside, started to pull ahead... This would have been blindingly obvious to them, hence the assumption that you had been using the phone they saw in your hand. An assumption that is accurate far more often than it is not."

huh.... if they are behind me - out of my site - and then overtake me. So moving into the fast lane and going past me in a matter of seconds it is blindingly obvious? As you state, it is an "assumption" not a fact, and further more state "accurate far more often than it is not", so that makes me guilty? 

Maybe, you are the one missing the point....

I am not here to fall out with anyone or be judged on what people think may have happened, given tips on how to improve my driving. I am here for advice on the charge.
I have told you my version of events, with good intentions. Yes, the phone was in my hand, so yes red handed but is that an offence under the current law? Additionally, I was NOT STOPPED. 

"Do NOT waste everybody's time by playing picky pedant with fine paperwork detail of dotting i and crossing t and querying punctuation. You were seen at the time. You agreed you were driving the vehicle at the time when you returned the s172. Nobody denies that. It will not impress the court, it will not invalidate the charges, and it will simply make you look like you're trying to escape the consequences of your actions. It will also give them even more reason to cast doubt on your actual defence, because it will simply make you look even more like somebody who can't just admit when they got caught.

There is a huge lesson for you to learn here - but right now you seem to be denying the requirement for any lesson at all."

By returning the S172 I accepted that I was driving the vehicle at the time, you are correct. But does make me guilty of using a handheld mobile phone/device while driving a motor vehicle on a road?? Yes or No? I am trying to understand the terminology of "using", by picking up a phone and moving it, am I using it? 
On this thread, I am not denying I had the phone in my hand briefly, if that is an offence then yes I am guilty and will accept my charge. If not then why should I accept it?
Additionally, I am not playing picky pendant with the paperwork, if the charge can be voided and not be defended then sure I am going to look into that. I actually, asked the questions to determine if I would be wasting your time and mine, posting numerous attachments when there was a quick solution. Further more, if two PC's and a Chief Constable can not raise a charge with the correct facts, under the correct Criminal Procedure Rules, then what hope do we have? A statement of facts should be a statement of facts, if they have used factually incorrect information in their Offence wording, then it is quite clearly not a statement of facts. Yes or No? Does the fact that the Charge was raised with an incorrect Statement of Fact's, by the Chief Constable, fill you with confidence in the system?

Anyhow, nothing personal. 

Gerrard00004

TheSpectator said:

Honestly OP, you are digging yourself into a hole. The court are going to believe the word of 2 police officers over you. Rightly or wrongly it's the way it is.

Plead guilty and get the minimum punishment you can. Pleading not guilty and being found guilty will lead to a harsher penalty.

I am not digging myself into a hole, I am asking genuine questions in order to ascertain how to proceed. Shall I post the paperwork? 

Mildly_Miffed

Gerrard00004 said:

I am well aware of the need to regularly check my mirrors but in order to be educated further by yourself, can you please tell me how often?

Often enough that, when you do check, you aren't surprised by what you see - because what you see accords with the mental picture you already have.

If you suddenly realise, on a motorway, that there's a marked police van that you haven't seen at all, right alongside you, occupants looking straight at you?
Yeh, that's a clue that you aren't looking often enough.

It's such a terribly unfortunate coincidence of timing that that just happened to be the one moment in all of this that you were moving your phone from dash to passenger seat, via a brief cuddle in your lap. But DEFINITELY not using it...

Like I say. A lesson. Up to you to take it or not.

Wonka_2

Gerrard00004 said:

TheSpectator said:

Honestly OP, you are digging yourself into a hole. The court are going to believe the word of 2 police officers over you. Rightly or wrongly it's the way it is.

Plead guilty and get the minimum punishment you can. Pleading not guilty and being found guilty will lead to a harsher penalty.

I am not digging myself into a hole, I am asking genuine questions in order to ascertain how to proceed. Shall I post the paperwork? 

Given your changing story and your search for every loophole/issue it’s probably time to either take legal counsel or accept what’s offered (and without re-reading it all what is the current offer on the table or are you just deciding whether to return the S172 ?)

The answer to the above probably depends on how deep your pockets are vs your desire to ‘win’ and how many points you currently have (which you’ve not answered) 

If you’re determined to go on with your defence then make sure you’re absolutely clear on your actions on the day - some vans have 360degree cameras more than capable of picking up the actions of a driver and their phone in the next lane 

Gerrard00004

Wonka_2 said:

Gerrard00004 said:

TheSpectator said:

Honestly OP, you are digging yourself into a hole. The court are going to believe the word of 2 police officers over you. Rightly or wrongly it's the way it is.

Plead guilty and get the minimum punishment you can. Pleading not guilty and being found guilty will lead to a harsher penalty.

I am not digging myself into a hole, I am asking genuine questions in order to ascertain how to proceed. Shall I post the paperwork? 

Given your changing story and your search for every loophole/issue it’s probably time to either take legal counsel or accept what’s offered (and without re-reading it all what is the current offer on the table or are you just deciding whether to return the S172 ?)

The answer to the above probably depends on how deep your pockets are vs your desire to ‘win’ and how many points you currently have (which you’ve not answered) 

If you’re determined to go on with your defence then make sure you’re absolutely clear on your actions on the day - some vans have 360degree cameras more than capable of picking up the actions of a driver and their phone in the next lane 

My story is not changing. I stand by my OP, but am being told that it doesn't matter. So yes I will be looking for a loophole if there is one. 

I will post the paperwork and see what the general consensus is.