Our website is made possible by displaying online advertisements to our visitors.
Please consider supporting us by disabling your ad blocker.

Ontario Highway Traffic Act

Discuss the Ontario Highway Traffic Act.


Post Your Traffic Ticket, and Get Help!


The Ontario Traffic Ticket Forum!


All times are UTC - 5 hours [ DST ]




Post new topic Reply to topic  [ 4 posts ] 
Check It Out
No unread posts New Set Fines Starting Sept 1st, 2015! Read and Learn Here.
  Print view

Right to search - hand-held wireless communication device
Author Message
PostPosted: Thu Dec 16, 2010 11:32 pm 
Offline
Newbie

Joined: Thu Dec 16, 2010 10:51 pm
Posts: 2
Just throwing this out there for discussion .... Perhaps someone has been in this "pickle".

With the recent change to Sec 78 of the HTA (hand-held wireless communication devices), what would you do in this situation....

-Police officer observes a driver holding cell phone to their ear or even up by their nose as they tic-tac type away a text.
-Police officer initiates a traffic stop (for obvious reason) and informs the driver of the purpose of the stop ..."I stopped you because you were talking on your cell phone" (or relevant statement).
-Driver states "I don't even own a cell phone" ..... because he/she has tucked it into the glove-box after seeing your lights on behind them.....and to my understanding there is ZERO rights to search under this offence (??).

Now the police officer is in a pickle? He/she would like to write a ticket, but the "evidence" to support the charge is out of sight. Of course you (police) know it was a cell phone (lips were yapping, laughing, little black or silver thing held to the side of driver's head) ..... I mean, who really does that? (unless they're on the phone).

Question: Grounds to search surround other scenarios (R.A.D.A.R. detectors or alcohol), but is there anything to "help" the police with regards to this hand-held wireless communication device section of the HTA? Secondly, would anyone ever consider seizing the phone (if it was in plain view) as evidence to support the charge? (Although there aren't many seizure options within the HTA).

Personally I think its a tough one to write and an EASY one to contest.

Thanks for reading,
Your thoughts?


Top
 Profile  
 
Re: Right to search - hand-held wireless communication devic
PostPosted: Fri Dec 17, 2010 11:40 am 
Offline
Moderator
User avatar

Joined: Tue Apr 22, 2008 7:21 am
Posts: 2933
Location: In YOUR rearview mirror!
Why seize the phone? It is different from SMWD and open liquor (where both are prohibited inside a vehicle)
Anyway, it is no different than a seatbelt infraction.....Either see the belt on or off......or see the phone being used or not. Gather evidence accordingly.

_________________
Above is merely a suggestion/thought and in no way constitutes legal advice or views of my employer. www.OHTA.ca


Top
 Profile  
 
Re: Right to search - hand-held wireless communication devic
PostPosted: Fri Dec 17, 2010 12:03 pm 
Offline
VIP
User avatar

Joined: Fri Apr 30, 2010 10:20 am
Posts: 1065
Agreed, the evidence isn't "out of sight" now that it's in the glove box, the evidence is the officer's observations at the time the offence was committed. That's what the court will rely on, regardless of whether a phone was actually observed still in the drivers hands after the vehicle was stopped.

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


Top
 Profile  
 
Re: Right to search - hand-held wireless communication devic
PostPosted: Fri Dec 17, 2010 10:56 pm 
Offline
Moderator
User avatar

Joined: Mon Sep 08, 2008 8:26 pm
Posts: 2881
Location: Toronto
ibboyd wrote:
Personally I think its a tough one to write and an EASY one to contest.



Respectfully disagree.

Simon Borys and hwybear both covered it. The officer does not need to produce the cellphone as evidence that the individual was talking on it. This is not a drug seizure. The only evidence that needs to be entered for a conviction is that the officer observed the driver using a hand-held communications device when driving. That's it. The officer only needs reasonable grounds, not proof beyond a shadow of a doubt. You'd need to show the officer didn't have an adequate view, or have clear, concise testimony countering the officer's statements, to win if it proceeded to trial. That is much easier said than done.

_________________
* The above is NOT legal advice. By acting on anything I have said, you assume responsibility for any outcome and consequences. *
http://www.OntarioTicket.com OR http://www.OHTA.ca


Top
 Profile  
 
Display posts from previous:  Sort by  
Post new topic Reply to topic  [ 4 posts ] 

All times are UTC - 5 hours [ DST ]


Related topics
 Topics   Author   Replies   Views   Last post 
There are no new unread posts for this topic. Hand-held Communication Device

driver2432

5

3809

Sat Jan 07, 2012 10:39 pm

shovel_deep View the latest post

There are no new unread posts for this topic. Drive hand held communication device

MarcoC

12

4401

Sun Oct 09, 2011 12:50 am

Radar Identified View the latest post

There are no new unread posts for this topic. Ticket for hand held communication device

JAYJAY

4

4332

Mon Jun 06, 2016 8:46 pm

Stanton View the latest post

There are no new unread posts for this topic. Hand Held Communication Device Ticket Mixup

steveb

5

2195

Thu Aug 09, 2012 10:44 pm

enconicado View the latest post

There are no new unread posts for this topic. hand-held device

rooferrick

4

1510

Tue Jan 14, 2014 4:50 pm

iFly55 View the latest post

There are no new unread posts for this topic. Driving Using a Hand Held Device

rlallen

5

3117

Wed Mar 23, 2011 4:09 pm

hwybear View the latest post

There are no new unread posts for this topic. Drive M/V using hand held device

chickeni

2

1054

Fri May 15, 2015 11:27 pm

chickeni View the latest post

There are no new unread posts for this topic. Summons 3 Hand Held Device

abc1414

3

278

Fri Sep 15, 2017 8:34 pm

abc1414 View the latest post

There are no new unread posts for this topic. Hand held device - court

Ufo

5

361

Wed Sep 20, 2017 11:52 pm

Ufo View the latest post

There are no new unread posts for this topic. Hand held device, ticket - Disclosure

Goldy

7

2654

Tue Jul 23, 2013 8:25 pm

Goldy View the latest post

There are no new unread posts for this topic. Ticket for Using Hand Held Device (Cell phone)

Mak Man

3

8097

Tue Jul 20, 2010 9:45 pm

Radar Identified View the latest post

There are no new unread posts for this topic. Latest case on 78.1(1) - driving with hand held device

Simon Borys

5

4047

Wed May 29, 2013 6:49 am

hwybear View the latest post

 


Who is online

Users browsing this forum: No registered users and 2 guests


You cannot post new topics in this forum
You cannot reply to topics in this forum
You cannot edit your posts in this forum
You cannot delete your posts in this forum
You cannot post attachments in this forum

Search for:
Jump to:  
cron
Web Development & Search Engine Optimization
Home | Court Listings | Ontario Traffic Ticket

Copyright 2007 - 2017 © Microtekblue Inc. Web Development & Search Engine Optimization Service. We Support phpBB All Rights Reserved.