Mis-Identified vehicle for talking on cell phone charge

Moderators: Reflections, admin, hwybear, Radar Identified, Decatur, bend

jsherk
High Authority
High Authority
Posts: 1722
Joined:

Mis-Identified vehicle for talking on cell phone charge

Unread post by jsherk on

Hi

Was hypothetically charged with 78.1(1)

Code: Select all

Hand-held devices prohibited
Wireless communication devices
78.1  (1)  No person shall drive a motor vehicle on a highway while holding or using a hand-held wireless communication device or other prescribed device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages. 2009, c. 4, s. 2.
So during cross-examination of officer I showed that the vehicle was a 1994 Sunbird and not a 1994 Sunfire as he had testified. During cross-examination I even asked if he identified the make and model of vehicle by comparing what was on the vehicle versus what was on registration and he said yes and confirmed that it was a Sunfire. I then submitted pictures of my vehicle and it clearly says Sunbird not Sunfire and the Crown even conceded that it was a Sunbird and not a Sunfire.

However the Crown then said its not "vehicle offence" but a "moving offence" and the model does not matter and the Justice agreed. I stated in closing that the officer grossly mis-identified the vechicle and the charges should be dropped, but Justice still found me guilty.

So my questions are:

(1) What is the difference between a vehicle offence and moving offence? I cannot seem to find any definitions that would identify what this means.

(2) Is speeding considered a vehicle offence or a moving offence?

(3) If the charge states "drive a motor vehicle" would that not mean that the officer has to correctly identify the vehicle?

(4) Is there any case law anybody can suggest that shows the officer must correctly identify the vehicle (even if not related to talking on cell phone specifically)?

Thanks


OPS Copper
Sr. Member
Sr. Member
Posts: 355
Joined:

Unread post by OPS Copper on

Vehicle offense would be something like a head light out or missing plates

Moving offense would be operator induced for lack of a better term.

Speeding would be a moving offense. Unless some how the gas pedal is depressed by the vehicle itself.

OPS


jsherk
High Authority
High Authority
Posts: 1722
Joined:

Unread post by jsherk on

And am I correct in assuming that for a speeding ticket, the officer must correctly identify the vehicle? If this is the case then would that not apply to Talking On Cell While Driving as well?

Thanks
+++ This is not legal advice, only my opinion +++


User avatar
Decatur
Moderator
Moderator
Posts: 697
Joined:

Posting Awards

Moderator

Unread post by Decatur on

Maybe you should go into some detail about the incident/testimony and how you got pulled over and charged with the offence. Then we can probably tell you how the officer identified your vehicle.


User avatar
CliffClaven
Jr. Member
Jr. Member
Posts: 36
Joined:

Unread post by CliffClaven on

For all intents and purposes, the Pontiac Sunbird and (later) Sunfire are the same vehicle (GM's compact FWD J-car platform). GM just changed the name during the model's life.


OPS Copper
Sr. Member
Sr. Member
Posts: 355
Joined:

Unread post by OPS Copper on

No for speeding no they do not have to identify the vehicle. Many times in court it was I observed a silver car speeding and stopped it. The driver is the one speeding. The car is not committing the offense.

OPS
Last edited by OPS Copper on Tue Jun 18, 2013 9:36 am, edited 1 time in total.


User avatar
Simon Borys
VIP
VIP
Posts: 1065
Joined:
Contact:

Unread post by Simon Borys on

One of the elements of the offence for using cell phone (as for any other moving or non-moving violation) is that the defending was driving a "motor vehicle" as defined in s. 1 of the Highway Traffic Act. The officer's mis-identification or imprecise identification (i.e. "grey car") of the motor vehicle may go to the weight of the officer's evidence, but it doesn't necessarily preclude the Justice from finding that the defendant was driving a motor vehicle. How much weight the Justice should give such evidence is a product of your advocacy skills...which is why lawyers are often worth hiring, because they've spent years cultivating said skills.




http://www.boryslaw.ca
NOTHING I SAY ON HERE IS LEGAL ADVICE.


Post Reply

Return to “General Talk”