Found this forum after researching about the ticket I received last week. I was driving at night around 11pm when I got pulled over and was given a $490 payable ticket for receiving a Highway Traffic Act 78.1(1) ticket. So let me begin my story.
I'm an 19 year old male driver I've never been in trouble at school and a good kid. I've been driving since I was 16 (Got my license right when I turned 16, G2 8 months after etc etc). I find myself to be a very good driver.
So I was at a light and I didn't pick up my phone, my phone was rested into my cup holder and I clicked the home button on my iPhone to activate siri so I can send a text to someone verbally (my car has a bluetooth mode). I never physically picked up my phone however I did look down to click it at a red for literally a second and I also moved around the stuff in the cup holders. After that the light turned green and I went through the intersection normally. Later I see a cop car with lights behind me, the cop pulls me over and states he saw me starring down while going through the intersection which is completely wrong. I was looking fully straight before the light turned green. I didn't say much as I was sorta scared because I've never really gotten into trouble. I just took the ticket, apologized and drove home. My parents were furious, I was even more mad. However I did notice the location was incorrect on the ticket.
I've read virtually all the posts on this forum and also talking to a buddy of mine who got one recently and he tells me it's hard to fight.
I think my only chances are on the evidence the cop has. However I did hire a paralegal and was wondering what your opinions are on this case. Do I have a good chance to win? It was dark at night and I was told this is a fairly new law so they're hammering it down left and right. I'm leaving for school soon and I'm the type of person that stresses a lot on begin perfect.
But here are some thoughts, based on your description of events...
You may have a problem... most likely the officers notes will say that you were looking down while going thru the intersection. The officer will testify whatever is in his notes and then it will be your word against the officers. Guess who the Justice of the Peace will most likely believe? On flip the side, since it was night, maybe in cross examination you can get officer to admit it was dark and he did not have a good view of you in the vehicle so it is possible he did not see what you were doing very well.
Another problem... When you read section 78.1(1) it says "while holding or using a hand-held wireless communication device". Notice the part that says "USING". If you take the witness stand and give your testimony to contradict the officers, and you say that you "clicked on it" then you are testifying against yourself that you were USING it and therefore you will have convicted yourself anyways. On the flip side Section 78.1(3) says "Hands-free mode allowed. Despite subsections (1) and (2), a person may drive a motor vehicle on a highway while using a device described in those subsections in hands-free mode."
Make sure you tell the paralegal you hire that (1) you want to see disclosure when they get it, and (2) you are not willing to accept a plea deal until they have first reviewed the disclsoure with you and talked about possible defenses.
It is properly secured in a handheld device unit; say on the dash. I "believe" you can press the answer button and that's it
Most phones and modern cars have bluetooth, auto answer, etc; there is really no excuse for not having this.
The officer saw you playing around with something; saw your phone and that's it
I also believe distracted driving can relate to a lot of different things which takes your attention away from the road.
you say "I did look down to click it at a red for literally a second and I also moved around the stuff in the cup holders"
you also say your phone was in the cupholder.
unless you can prove doubt that the officer was wrong; its going to be hard;
ask for disclosure and if required get a brief.
Too many people are being injured and killed on the roads, with people talking on cellphones, texting and NOT driving and paying attention on the road
courts are coming down hard as "I believe" they should do
* NO you cant touch your phone
* Speeding is speeding
* Challenge every ticket
* Impaired driving, you should be locked up UNDER the jail
IMO The position of the phone (where it is sitting or how it is mounted) has nothing to do with the charge and IS irrelevent.
A good question would be "Does tapping a button on the phone to turn on hands free voice mode fall under Section 78.1(3) exemption?" Even with hands free devices you usually need to hit a button first in order to make a call and hit a button to hang up a call, so shouldn't that be the same for the phone itself.
I always recommend people plead not guilty, request a trial, request disclosure and then once you have received the disclosure, THEN you can decide whether to hire a paralegal or not. They will just charge you to do a bunch of stuff you can do yourself anyways.