I'm just looking for some opinions on this as I know they are prosecuting this charge fairly harshly these days. Here is the situation....
I was sitting at a stop light in the left turn lane. My phone was in my lap as that is where I had set it after using it in the parking lot before driving. The officer pulls up to my rear quarter in a van. Then as the light goes green the police lights come on and I pull over. (I had learn a long time ago that it is best to say as little as possible to the officer but be respectful and answer any questions asked.) The officer comes up and asks for my license. I hand it to him. He leaves then comes back with the ticket. Tells me that I had my phone in my hand and then tells me about what my options are and walks away. I immediately went to the courthouse and plead not guilty.
I at no time touched my phone. I didn't even look at it. I have attached the ticket and disclosure for review.
As well I noticed that the officer didn't sign the ticket. Not sure if that is a fatal flaw or not.
My court date is coming up on Thursday (I just got the disclosure Friday (I had requested it 2 months ago)
Any opinions would be greatly appreciated.
- Disclosure.jpg (234.1 KiB) Viewed 2549 times
Be aware that the law applies "while HOLDING or USING a hand-held". You don't have to actually be holding the cell phone to be convicted; simply using it is enough. So, if the cell was on your lap and you were looking at it for any non-emergency purpose, that qualifies as 'using' it. FYI, a driver was convicted when the passenger held the phone for him and he never physically touched the phone.
As stated above. it was not in my hand. Nor did I look at it.
I forgot to mention that it was a blitz day for distracted driving. There were 86 infractions handed out that day.
You described the phone being in your lap.... Was it resting on your leg or on the seat between your legs? Just so you're aware, the courts have previously ruled that having the phone resting on your thigh while seated is "holding".
The officer's notes are pretty vague for this type of charge - no mention of type of phone, colour, case, etc. It could be worth confronting them in cross examination for more details or about the lack there of.
The courts won't care that there was a blitz on and its not relevant to the charge.
Also, its not necessarily a fatal error but I don't think Maitland Ave actually intersects with Baseline Rd. Its actually Clyde Ave according to the street signs and google maps.
Thank you for noticing the intersection mistake. Not necessarily a fatal flaw but another questionable aspect of this charge. The errors on the tickets, and the fact that I have entered a plea could lead to... "When presented with a fatal error, the Justice may respond to the defendant that by appearing in court any prejudice regarding the error has been absolved and a conviction to the speeding ticket should be registered, regardless of the error." After having the time to look into this more myself I realize that I need to seek legal council on this matter. Thank you for your input HWStar and turdferguson.
The police officer is going to testify that you were holding it. It may come down to a he said / she said situation.
That could well be. But, absent details of the phone in the disclosure, the OP may be able to cross-examine the officer successfully. If the officer cannot reasonably describe the phone, what proof is there that the device that was on the OP's lap was even a phone? It could have been an iPod or some other device that is incapable of transmitting or receiving information (or whatever the exact HTA definition is).
I could be wrong but doesn't the ticket need to say "Highway traffic act of Ontario" i know someone who got a ticket thrown out because, like yours it only said "Highway traffic act"
No, the ticket does not need to say "Highway Traffic Act of Ontario." In fact, on handwritten tickets, officers typically use the abbreviation HTA.
Cannot hold an Ipod either Same fine and charge It does not even need to be able to transmit. The offence is driving while holding and not using. Using it is not even relevant to the charge.
Courts have accepted that officer knows what a cell phone looks like and what it looks like to be manipulated Therefore it does not need to be described.
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