Mobile Phone Offences – Some Use is Legal While Driving, Some Isn’t
We struck a significant blow in Crown Court recently, receiving a judgement helping to establish the shortcomings in mobile phone driving offence legislation & providing some clarity for motorists.
To be clear; we are not attempting to encourage anyone to do anything that might distract them or reduce their attention level while driving. We are only here to help drivers to avoid wrongful convictions
Background
Our client had been stopped for using his phone when he had actually been using it only as an iPod. Initially found guilty in Magistrates Court, we appealed to Crown Court, which overturned the conviction and found in our favour.
(A full transcript of the Judgment is below).
What the Law Says
It is an offence to use a mobile phone while driving…. we all know that.
The offence carries 6 penalty points and £200 fine. (contrary to Reg. 110(1) of the Road Vehicles (Construction and Use) Regulations 186, section 41D of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act, 1988)
But….. the caveat here is ‘using a mobile phone for communications purposes’.
The Term ‘communications purposes’ covers any activity where you would be transmitting or receiving data. Including use for phone calls, texting, emails, using the internet, streaming music, downloading anything, uploading anything etc. ……
……. what about all the other functions in your phone which don’t involve communications?
What about using your phone as an iPod?
We have a Crown Court Judgment that agrees with us that this is NOT an offence prohibited by Regulation 110. Even if the phone is handheld at the time. (Although be aware that you may still be guilty of careless driving under s.3 of the Road Traffic Act & be prosecuted as such).
Streaming Data
If however you were to stream your music via Spotify rather than playing pre-downloaded tunes from your iPod then you would be guilty of committing a mobile phone offence.
The same disparities apply with some games and other apps. Depending on whether they are self contained within your device or rely on connectivity to function.
What if use your phone as a Calculator? A Dictaphone? A Compass? A Clock?
Where does the law stand on using your phone as a handheld GPS device?
It is debatable whether or not using a hand-held mobile phone whilst driving as a satellite navigation device constitutes an offence.
The police will certainly prosecute it as an offence.
It does involve the sending and receiving of data (GPS signal). But this is not the type of signal that was envisaged when this particular regulation was created.
We will be testing the law as and when appropriate in that regard.
It is yet another potential anomaly created as a result of the legislation not keeping up with the very rapid growth in technology and the functions contained within smart phones.
How Mobile Phone offences are Currently Policed
We receive large volumes of enquiries on a weekly basis from drivers who have been wrongly accused. The law for using a mobile phone while driving is far from clear so isn’t really much of a surprise.
It is quite unusual for us to be presented with a case where the police officer took the time to ‘investigate’ the offence fully.
This means that in the majority of cases, a motorist is witnessed by an officer driving with a phone in their hand, stopped and given a ticket.
The technicality so often being missed is that it is supposed to be the officers duty to investigate the offence fully. Not only to find any necessary evidence of the offence being committed, but also, and perhaps more importantly to investigate any circumstances that may support an offence not being committed.
Mobile Phone Offence or Careless Driving?
It is ironic that if they did this, more drivers would in all probability be prosecuted for careless driving instead. Just as would be the case if you were eating a sandwich, drinking coffee, shaving, or doing any other activity that reduced your control while behind the wheel.
But, the vast majority of police officers don’t seem to be interested in carrying out an investigation. So no one establishes the facts.
This omission on their part makes it easier for us.
A police officer should examine your device. In truth, the training required to be able to accurately examine all device types at the roadside is probably prohibitive.
We have instances of motorists offering to show their devices to the officer who stopped them, only to have their offer rejected.
In Summary
To be guilty of using a mobile phone whilst driving, you must be using the device or a function within the device to send or receive data.
If you use any other functions within your phone for something that doesn’t require the communication of data to or from the phone then you are not guilty of using a mobile phone whilst driving.
This as previously stated, does not mean that you could not be accused of careless driving. (which carries 3 penalty points and £100 fixed penalty fine).
What You Can Do To Defend Yourself
If you are accused of using your mobile phone while driving it is usually because you have been seen with your phone in your hand while operating your vehicle.
If you were not using any communications functions at the time of the alleged offence, then you are not guilty of a Reg. 110 offence.
We can help…….. ask us about your alleged mobile phone offence free of charge and without obligation. Find out how our Crown Court Judgement can help to defend your driving licence.
SEE FULL CROWN COURT JUDGEMENT HERE
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