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Ontario Highway Traffic Act

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Drive M/V using hand held device
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PostPosted: Fri May 15, 2015 7:53 pm 
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Joined: Sat May 31, 2014 3:49 pm
Posts: 4
Hello,

In mid february, I was driving at northbound DVP on the right most lane. The traffic was heavy. I had my phone on my seat between my legs. I had bluetooth device on my right ear. I was neither texting nor on the phone. I was changing lane to the center lane but at the same time I was trying to put the phone away into the holster using my left hand. To my bad luck, there was a cop on the center lane right behind (it looked liked I was cutting him off, though I wasn't). Got pulled over and was given a ticket for "Drive - Handheld communication device" on DVP. I explained to him, I was only putting off my phone. He wasn't happy with my explanation and gave me the ticket anyway. I selected trial option and in March received a trial date in June. I requested disclosure as suggested by ticketcombat.com. I asked for following:
    - a full copy of the police officer’s notes;
    - a copy of both sides of the officer’s copy of the ticket (Notice of Offence);
    - a typed version of any hand written notes;
    - witness will say statements;
    - witness statements;
    - any statements made by the defendant;
    - copies of original notes of such statements; and
    - the names and address, occupation and criminal record of the persons providing such information.

I received a notification for the disclosure to be picked up and I did. It contained 2 pages of computer typed "Ontario offence ticket in narative text" and nothing else. I'm typing below the content of the disclosure:

    Ontario Offence Ticket in Narative Text

    Ticket No: x

    My vehicle northbound DVP, north of Eglinton Ave in passing lane in heavy traffic. Looked across and saw grey van in centre lane with east indian driver, stopped while other traffic moved off. Driver was looking down into his lap , vehicle moves off slowly with driver looking down and then briefly up to drive. Driver again looks into his lap and then raises his left hand in which he was holding a white coloured cell phone. Driver had blu tooth device in his left ear.
    The Don Valley Parkway has,at that point , three lanes north and three lanes south.
    Weather was dry, clear daylight with dry roads . Traffic was heavy.

    Ticket Details
    -------------------
    Ticket Number:
    Officer:
    Organization:
    Offence Date:
    Offence Time :
    Location:
    Municipality:
    Statute: HIGHWAY TRAFFIC, ACT
    Charge : 78.1(1)
    Charge Text: DRIVE - HANDHELD COMMUNICATION DEVICE
    Set fine: 225.00
    Total Payable: 280.00

    Charged/Offender
    ---------------------
    (my details)

    Vehicle
    --------
    (my vehicle detail)

    Additional information
    --------------------------
    Commercial Vehicle: N
    CVOR: N
    CVOR/NSC Number:
    Code:
    Motor Vehicle Involved: Y
    Collision Involved: N
    Witnesses: N,
    Memo Book Notes w/ Evidence: N
    In- Car Video of Offence: N
    Conversation Audio Only: Y
    Related Ticket # ' s :

1) Should I send a follow up disclosure asking for?
    a) copy of the officer's ticket
    b) Audio/Video evidence (since he has 'Y' to conversation audio)
2) The information was not correct on his disclosure
    a) he was on center lane and I was on the right most lane switching to center lane. The traffic on his lane moved off and was a gap between him and the traffic while I was switching in front of him.
    b) my blu tooth device was on my right ear, as I do always
3) I was momentarily holding just before putting if off in the holster.

Is there any chance for the ticket to get dropped? Any suggestion is appreciated...

Thanks in advance..


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Re: Drive M/V using hand held device
PostPosted: Fri May 15, 2015 9:07 pm 
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Sr. Member

Joined: Mon Nov 29, 2010 8:08 pm
Posts: 550
R. v. Kazemi, 2013 ONCA 585 (CanLII)
R. v. Pizzurro, 2013 ONCA 584 (CanLII)

Please read these two decisions in full.

The Ontario Court of Appeal has ruled the crown does not need to prove that you were using the phone; only that you were holding it in your hand. Even if your phone did not have battery power, or didn't have an active phone plan; you will still be found guilty.

_________________________________

The ticketcombat disclosure form should not be used. It is an exhaustive list for a fishing expedition, and most of the items there are not relevant for your handheld charge. Who are the other witnesses? What criminal record?

1 a) There's nothing relevant on the officer's copy of the ticket.
b) If audio was checked, you can submit a new disclosure request; specifically asking for this item. Also reference that the officer's notes has this item checked. Make a copy of his notes and highlight where it says that audio is available.

2 a) center lane is also the passing lane; his description of driving events is consistent with yours. His story just starts when you're in the centre lane. The whole traffic moving and you staying still was to show distracted driving, which could affect sentencing. It's not an essential element to get a conviction.
b) which ear you had the blu-tooth device is not going to throw out the rest of his evidence. The essential elements to get a conviction for this charge is whether you were holding your phone or not. It's not going to be decided based on which ear you had the blu-tooth device.

3) Momentarily holding the phone = guilty; please read the opening two decisions.


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Re: Drive M/V using hand held device
PostPosted: Fri May 15, 2015 11:27 pm 
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Newbie

Joined: Sat May 31, 2014 3:49 pm
Posts: 4
Thank you iFly55 for the response.

I will send a follow up disclosure asking for the audio evidence..

Other than hoping that the cop doesn't show up... Any suggestion on the trial day?


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