Driving while Holding Handheld Device - do I have a defense?

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passthedonuts
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Driving while Holding Handheld Device - do I have a defense?

Unread post by passthedonuts on

Hi everyone,

Just received a ticket for "Driving while holding handheld device". (Don't have the paperwork in front of me, so I cannot quote the appropriate section).

A friend of mine who is a police officer told me I have a reasonable defense, here is what happened.

Officer was driving beside me on a main road. My phone was in my hand. I was in the right hand lane, he was in the left. Immediately, I pulled into a gas station, got out my car and went into the store for about 5 minutes. As I was turning into the gas station I noticed the officer turning around and circling the block. I returned out to my parked car and he was sitting in his cruiser waiting for me. I drove back onto the street, he followed. Pulled me over 3 blocks later.

The exchange went like this:

Him, "I pulled you over because I saw you on your Blackberry."
Me, (smart ass response I know). "I don't have a Blackberry"
Him, "Well whatever phone it was, you were on it"
Me, I sarcastically starting pressing my steering wheel volume knobs implying I was pressing those.
Him, "I saw the phone in your hand"
Me, Silence.
Gave him paperwork and he issued the ticket

My argument is that between the alleged offense, and the time the ticket was served, their was too much ambiguity for him establish sufficient evidence.

Specifically:

- he did not have a view of my license plate from his angle
- he could not accurately verify my identity when I went into the store
- he lost sight of me while in the store
- he had no evidence or confirmation from me that I was in fact the person driving the vehicle at the time. For all he knows, I could have swapped keys at the gas station with a friend/family member at the gas station. I seriously considered waiting inside the store and having my girlfriend drive and meet me there, and switch keys inside the store - having her leave in my car. I just didn't have the time and was too far from home.

My police officer friend said my argument is a a reasonable defense and the onus is on the officer to prove I was driving the vehicle at the time of the offense. And he likely has none...

Any comments?

Thanks!


iFly55
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Unread post by iFly55 on

R. v. Pizzurro, 2013 ONCA 584 (CanLII)
R. v. Kazemi, 2013 ONCA 585 (CanLII)
[14] Road safety is best ensured by a complete prohibition on having a cell phone in one’s hand at all while driving. A complete prohibition also best focuses a driver’s undivided attention on driving. It eliminates any risk of the driver being distracted by the information on the cell phone. It removes any temptation to use the cell phone while driving. And it prevents any possibility of the cell phone physically interfering with the driver’s ability to drive. In short, it removes the various ways that road safety and driver attention can be harmed if a driver has a cell phone in his or her hand while driving.
passthedonuts wrote:My phone was in my hand.
The court of appeals have ruled that you do not need to be using your phone to get convicted; simply holding it in your hand is enough. Officer doesn't need to identify the make/model of your phone. Momentarily losing sight of the vehicle is also acceptable in court.

You're making a lot of assumptions here about what the officer may or may not have seen. You should file the ticket for trial; once you get your notice of trial, you can request disclosure; request for the officer's notes and go from there.

Once you review the officer's notes, you can choose whether you want to fight the charges or cut a deal.


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