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?