Here is the disclosure from the Officers notes (hard to read, but did my best):
Obs 3 sec. female smart phone device right hand - black case, white cord
Female arm extended towards rear view mirror.
High white cord out of bottom.
Catch back up.
Confirm by observations holding equal to.
Obs male and female "smiling".
Male leaning towards centre or m/v, as with female.
Female exaggerated smiles multiply.
Taking a selfie.
Male sunglasses on. Unknown where eyes are. Smiles at same time female.
Activate sirens, no reaction. On-off 3x.
Honk police horn (louder than reg horn), no reaction.
Still taking selfies.
Female finally hears and sees me.
Question: It was a nice selfie you guys were taking.
Answer: Oh no, we were on a video chat with her mom.
Explained distracted driving, even if not holding. Sirens 30 sec, didn't even notice.
Okay here's what happen:
1. I was driving with my wife (in the passenger seat). She got on a video call, for a few minutes with her mom. So she obviously had her hand up while speaking. The phone is on speaker so I can hear the conversation, hence the Officer's observation at us "smiling" at the same time.
2. As he mentions, he thought we were taking a selfie...or numerous selfies. I told him that my wife was on a video call and I was minding my own business. He said "Tell it to the judge". Then came back and told us it's still distracted driving because I was distracted and didn't notice him earlier.
3. We were driving in the HOV lane, the officer's car was in the adjacent lane next to us in an unmarked SUV. I heard the siren when he turn it on then off. I thought it was coming from passing car on the other side of the highway. I noticed him turn on his lights, but at first I assumed it was for the car in front of him (we were on a busy highway with lots of cars around us). As soon as he pulled behind us, I knew it was for us and pulled over.
To me, this whole thing was about him mistaking us for taking a selfie, instead of my wife being on a video call. I took a screen shot of the end of the Whatsapp video call. The time and date on it, is exactly the time written on the ticket. As he states, I'm wearing sunglasses and he can't tell where my eyes are looking and he never mentions that I turned my head towards the phone.
Would love your thoughts on this and whether or not I have a case.
The reason I ask is because these are what's considered the two distracted driving laws.
78 is "Display screen visible to driver prohibited." It doesn't get much attention anymore. It was originally meant to deal with advancements in aftermarket head units. Gone were the LED VCR like screens. They were now coming with display screens with DVD function.
78.1 is "Hand-held devices prohibited." This is the one you're used to hearing about these days whenever someone talks about a driver using their phone.
Sometimes people ask whether or not 78 could today be used against drivers when a passenger is using their phone. It's an interesting question and under the right circumstances, I guess it could. I couldn't give you a definitive answer there.
However you were charged with 78.1. This would mean you were either holding or using your phone. You weren't holding it, so were you using it?
At what point are you using your passengers phone? Are you using it once you look at it?
I hope others give their two cents.
Section 78 does not apply because ss. 78(2)(b) specifically excludes hand-held communication devices. In this case, you were charged with the correct section.
Section 78.1 prohibits the use of a hand-held electronic communication device that transmits electronic data. The device in question is an electronic communication device. Since you are also communicating via a WhatsApp video call, it is also an electronic communication device that transmits electronic data. Since your passenger is holding the device in his hand, it is also a hand-held electronic communication device that transmits electronic data. As bend already mentioned, at what point are you using the device? I would presume that the legislators had the intention to ban all use of mobile devices outside of those specifically referenced in Reg 366/09. In my opinion, this ban would include your video call with the device in your passenger's hand. However, that decision is up to the courts to decide.
On a side note, and I welcome input on this issue, if the device in question (with an active video call) was not in a passengers hand, but securely mounted to the vehicle, where would this situation fall? HTA 78, 78.1 or not subject to control?
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