Ontariohighwaytrafficact.com

I was stopped at a stop light (it was a long stop light at big intersection) and remembered my battery on my cell was running low (I'm a mother of 3 young kids and having cell battery is important), so I plugged it in, noticed the plug was fraying, fiddled with it for about 5 seconds to confirm it was actually charging, and set it down. I didn't even turn it on, and I got a $490 fine!

The cop even said that I can go to court if I disagree because I was at a stop light and just plugging it in....

If I go to court, should I plead guilty but ask for a reduced fine, or should I go the trial route?

Need some advice here because I wasn't even on my phone and I can't afford $490.

I was caught in Quebec 2 years ago for using my phone (that time I was, on the phone with the school when one of my kids was really sick), and I paid that one because I was on my phone, GUILTY, but I learned my lesson..... Would that prior ticket hinder me in court?

PLEASE HELP

What is the exact charge and section number on the ticket?

Can you blank out the personal info on the ticket and scan and post so we can check for fatal errors?

You can't hold a handheld while on the road. What you do with it is irrelevant.

Whether you're at a red light also doesn't matter. You're still considered driving.

It was Section 78.1(1)

And offence was written as: Drive - Hand-Held Communication Device

Are the attached sufficient?

Thanks for your help!!

Just out of curiosity, what about peeling a banana at a stop light? That would have been more distracting and taken me more time than plugging my cell phone in....

....but not against the law. You may know that you were only plugging it in but the lawmakers have decided that it's better for society just to ban it's use altogether. Not saying it's right, just saying why it is what it is.

You weren't charged with peeling a banana. Whether or not peeling a banana is less or more dangerous is irrelevant. You were charged with Hand-held devices prohibited:

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.

I'm not trying to play traffic morality police. You brought up some points:

(a) You were at a stop light; and

(b) you were only holding your phone.

These are not legitimate arguments to the charge, that's all. The section specifically reads "holding". The act of using the device is not necessary for a conviction. They do not need to prove you were using the device. Also, you are still driving while you're at a red light. Your full attention is still required whether you're moving or not (e.g. potentially moving for emergency vehicles). You need to be off the road and legally parked.

There's nothing stopping you from scheduling an early resolution meeting. There is no lower charge on a handheld device ticket. You can still try for a reduced fine. It will affect your insurance either way. This is a conviction that will potentially raise your rates. Whether or not your conviction in Quebec followed you to Ontario is up to the reciprocal agreement in place between the two provinces. There's a list of convictions that are in the agreement. If handheld is one, it would appear on your abstract as if it happened in Ontario. You can either comb through the agreement or order a copy of your record online from the MTO.

You can also request a trial, make a disclosure request, and proceed towards your trial date. After all of that, if you still want to plead guilty on that date, you'll have that opportunity.

My first thought is that if the phone is off, then it is NOT capable of receiving or transmitting:

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.

I have not read any case laws on this though, so not sure if "capable" has been defined yet.

Anyways you have a few options:

(1) Plead guilty with an explanation and try to get the fine reduced. You will be convicted and get demerits and have to pay the fine and your insurance may go up as well.

(2) Plead not guilty and request a trial. Once you get your notice of trial, you can request disclosure (officers notes). Once you get the notes, post them here so we can see if the officer missed anything important. After having reviewed disclosure you could either:

(a) Go to trial and tell prosecutor you want to plead guilty and try to get the fine reduced. You will be convicted and get demerits and have to pay the fine and your insurance may go up as well.

or

(b) Go to trial and try to beat the ticket based on the fact that the phone was off and possibly any discrepencies in the officers notes. If found guilty you can then try to get the fine reduced. You will be convicted and get demerits and have to pay the fine and your insurance may go up as well. If found not guilty, then yahoo!

jsherk wrote:

My first thought is that if the phone is off, then it is NOT capable of receiving or transmitting:

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.

I have not read any case laws on this though, so not sure if "capable" has been defined yet.

Okay well I found this:

R. v. Pizzurro, 2013 ONCA 584

http://canlii.ca/t/g0qn3

It basically says that a cell phone is a "hand-held wireless communication device" and that the "capable" part only applies to "other prescribed devices" and that cell phones are just assumed to be capable no matter what.

But there is still a possibility (very small) that a JP might drop it if they agree that having the phone off AND being stopped is a good reason. Notice I said very small possibility, so you would have to be very very convincing!

Anyways I recommend suggestion #2 in my post above as your current course of action.

What if you argue that you were simply jiggling the wire? If the officer's notes (after you've requested and received disclosure) say nothing about you plugging in the phone, you could say you were merely adjusting the wire to ensure your phone was charging. A wire is not a device that is capable of receiving or transmitting a call, etc. That may be splitting hairs, but it also may work.

Thank you all for your advice.

Should I check the box to request that the officer appear in court? Or should I only request that after I request his evidence? Or by checking this box does it mean I automatically get his evidence?

Yes definitely check that box now!

Peeling/ eating food (replace with reading a map/newspaper/book doing your make-up etc etc) is not what the distracted driving law is about or could be charged under

but a police officer at his discretion could charge you with careless or DD.

I believe careless driving will receive six demerit points, fines up to $2,000 and/or a jail term of six months. In some cases, your licence may be suspended for up to two years.

I guess for peeling a banana at lights is probably a big stretch but weaving all over the road with a big mac will (I've seen it)

waterskiiichick wrote:

Just out of curiosity, what about peeling a banana at a stop light? That would have been more distracting and taken me more time than plugging my cell phone in....

I bet the officer's notes will not say anything about seeing the driver plugging the phone in...the officer will have it written that they observed the phone in the driver's hand...so if the notes don't say anything about seeing the driver plugging it in, don't do the happy dance quite yet...In order to use the adjusting the wire excuse, you will have to take the stand to give that testimony, you will then be subject to cross examination...do you think the JP will believe a person did not have the cell phone in their hand while "adjusting" the wire? It is just not a believeable excuse...bad advice...

Was the hand-held device securely mounted to your vehicle? Or was it loosely set in your cup-holder?

It was actually flat on my cup holder. My cup holders are filled with gum packs for my kids, and so I lay it flat on there while driving. So I could potentially just shove the plug into it without holding it....

Potentially?

Did you have the phone in your hand or not? (you don't have to answer my question but you will have to answer the crown when they ask you).

More importantly, is it possible that the officer saw you with the phone in your hand?

Most importantly, can you get the officer to say, on the stand, that he did not see you with the phone in your hand?

I had my phone in my hand, and plugged it in... I was at a stop light (a long one) and literally plugged it in and shook the wire until it buzzed to show me it was charging. I know I did it... I'm not saying I didn't... but I wasn't aware that I wasn't allowed to even "touch" my phone while at a stop light (I also know that saying you didn't know it was illegal isn't a good enough excuse). I'm just looking for a possible reduction in the fine, or a mistake in my file to not have to pay. I don't text and drive and I drive safely, and it's really upsetting to pay a fine for literally plugging in my phone while at a long stop light.

I will mail my ticket in and request a trial, and request the officers notes and see what they say. As mentioned above, I can always choose to plead guilty the day of the trial, correct? I'm really just hoping for a reduction, because the officer even said (after he handed me the ticket and after he saw I was crying) that I can take it to court if I disagreed with it since I was at a full stop and I was only plugging it in. It was almost like he was suggesting that I go that route...

Yes you can plead guilty on the day of trial if you do not want to fight it. But you need at least a couple weeks to review disclosure, so if you get it within two weeks of the trial you can show up and ask JP to adjourn it to another date as you need time to review the disclosure and prepare your defense. Again you can still plead guilty at anytime.

The prosecutor may offer you some kind of plea deal with a reduced fine, however remember it will STILL affect your insurance.

If you take it to trial and try to fight it and lose, then the prosecutor will probably ask for full fine, however you can still ask JP for reduced fine and they may or may not do it.

So worst case scenario is I have to pay the full fine and waste my time going to court.... best case scenario, I get a reduced fine (or some miracle happens and get it thrown out)....

Read these two short decisions in full to better understand how HTA S78.1 "Drive – hand-held communication device" is being interpreted in ON courts today.

R. v. Pizzurro, 2013 ONCA 584

http://canlii.ca/t/g0qn3

R. v. Kazemi, 2013 ONCA 585

http://canlii.ca/t/g0qn4

It may be in your best interest to invest in a windshield or car-vent clip type mount for your hand-held device; had it been securely mounted, you could have legally attached the power-cable to your phone.

ONTARIO REGULATION 366/09 - DISPLAY SCREENS AND HAND-HELD DEVICES

https://www.ontario.ca/laws/regulation/ ... ]Exemption for pressing buttons

14. (1) A person may drive a motor vehicle on a highway while pressing a button on a hand-held wireless communication device to make, answer or end a cell phone call or to transmit or receive voice communication on a two-way radio if the device is placed securely in or mounted to the motor vehicle so that it does not move while the vehicle is in motion and the driver can see it at a quick glance and easily reach it without adjusting his or her driving position. O. Reg. 366/09, s. 14 (1).

(2) A person may drive a motor vehicle on a highway while pressing a button on a device that is worn on his or her head or hung over or placed inside his or her ear or is attached to his or her clothing and is linked to a hand-held wireless communication device to make, answer or end a cell phone call or to transmit or receive voice communication on a two-way radio or a hand microphone or portable radio. O. Reg. 366/09, s. 14 (2).[/quote]

Hi All,

I got my date for court. Can anyone tell me how to get in touch with the prosecutor if their name isn't on this form? And they didn't even sign it.

Thanks!!

Stephanie

Sadly, the fact that the prosecutor didn't sign it is irrelevant. The clerk has certified that he or she gave a copy personally to the prosecutor. You would have to prove otherwise.

Now that you have your trial date, you should request disclosure. Courts may have different procedures. You should contact the court to find out how to submit your request. With any luck, the court will accept an e-mailed request. I'll save you the search: the court's phone number is 613-580-2665.

in the UK, some people got done for eating, under distraction laws.

basically anything OTHER than driving could cause a distraction.

A phone more so, due to the way it effects your brain (proved)

eating or talking not so, but if your not in full control of your car

then your distracted

waterskiiichick wrote:

Just out of curiosity, what about peeling a banana at a stop light? That would have been more distracting and taken me more time than plugging my cell phone in....

If you need disclosure, ask for it. If you need a fax, email, etc for the prosecution office, you can contact the court house and find out. You can also do it in person. They may have a generic disclosure request form you can fill out also.

Ottawa [0460]

100 Constellation Crescent

Ottawa, ON K2G 6J8

[Map]

Phone: 613-580-2665

Fax: 613-580-2664

Email: provincialoffences@ottawa.ca

Website

The address/phone above posted by Bend is for the Provincial Offences Office. Call them and ask for Prosecutor contact info.

It's a bit sad, although I understand the "letter of the law" but moving a cellphone, pluggin it in when stopped or pulled over, popping a chocolate in your mouth, is totally different from someone holding a phone to the head and talking?

or even texting, totally understand it's dangerous and distracting

But surely just pluggin it in, or moving it, thats harsh.

We have to multi task in out cars all the time, keeping kids quite, directions, messing with the heater controls, mirrors, a load of things

this is even in the UK, so not having a dig at anyone, but seriously...... can understand why people get pi$$ed off

waterskiiichick wrote:

I was stopped at a stop light (it was a long stop light at big intersection) and remembered my battery on my cell was running low (I'm a mother of 3 young kids and having cell battery is important), so I plugged it in, noticed the plug was fraying, fiddled with it for about 5 seconds to confirm it was actually charging, and set it down. I didn't even turn it on, and I got a $490 fine!

The cop even said that I can go to court if I disagree because I was at a stop light and just plugging it in....

If I go to court, should I plead guilty but ask for a reduced fine, or should I go the trial route?

Need some advice here because I wasn't even on my phone and I can't afford $490.

I was caught in Quebec 2 years ago for using my phone (that time I was, on the phone with the school when one of my kids was really sick), and I paid that one because I was on my phone, GUILTY, but I learned my lesson..... Would that prior ticket hinder me in court?

The previous offence in Quebec will likely show on your driving record as an Out Of Province conviction. Demerit points are active for 2 years from offence date, and 3rd party (employer/insurance) visibility of the conviction is generally 3 years.

You have likely been charged under HTA s.78.1 for Drive With Handheld Communication Device. This offence carries a 3 demerit point penalty.

Unfortunately this section prohibits even the holding of the device:

"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; 2015, c. 27, Sched. 7, s. 18."

These charges can be fought at court, but they will generally be all-or-nothing defences based on the legal merits of the Prosecutor's evidence. Depending upon the jurisdiction involved, they can sometime be negotiated to a lesser offence.

That's all I'm looking for. Yes I plugged in my phone while stopped at a stop light. Yes, under the law I'm guilty, but I'm hoping to get it reduced as I can't afford $500

It's one of those tickets that they are trying to make examples of everybody so they tend not to drop or change the charge if they don't have to.

At any trial, if you are convicted (or if you do Plead Guilty With An Explanation), you will then have the ability to make a submission to the JP about the $$$ penalty. This is when you just tell them how sorry you are and that you learned your lesson and that you don't want to come back again and that you are poor and that you can barely pay your rent and bla bla bla and please consider reducing it to $100 and I will still need 6 months to pay it off.