Office said you can't text or call while driving, but I was waiting at red light, he suggested that by law the moment I touch the road there is no difference if I am driving or waiting at red light.
I got 490 CAD fine.... Which is much more than my daily salary so for sure I won't hesitate to take leave and attend the court.
I am very much worried about points, how many points are given to driver ?
If I contest and loose what would be negative impact on my driving history ?
Thanks for your guidance...
(6) Subsections (1) and (2) do not apply if all of the following conditions are met:
1. The motor vehicle is off the roadway or is lawfully parked on the roadway.
2. The motor vehicle is not in motion.
3. The motor vehicle is not impeding traffic. 2009, c. 4, s. 2.
Note all of these conditions must be met. The offence is made out. Yes the fine is a big one so you could try to get the judge to reduce by saying that you weren't actually in motion and explain your financial situation. Although saying the $490 is more than your DAILY salary will need more clarification.
This has to be proven in court, beyond any reasonable doubt.
Unless you admitted to the officer and he had a body camera or a microphone with him, as some Ontario police do, how can that be proven?
I would get the disclosure first and see what evidence he has on you, if any, then go from there!
Earlier he had told you have 3 options, so after asking above question I asked what are 3 options, he said it's on back of slip, I found him bit angry, which I can't prove or I might had miss-judge.
I think I should ask for officer notes.
Any suggestions should be helpful.
Thanks a lot.
You essentially admitted guilt to the officer. If this makes it to trial it will be very difficult to beat.
That being said, request a trial and ask for disclosure then post it here, maybe there is a chance you can get off on a technicality or a reduced fine at the very least.
A conviction for this offence would result in 3 demerit points and it would result in the conviction being recorded on your driving abstract for a few years (I believe it's three years).
In terms of insurance, a conviction for this offence would probably be considered minor, but it may still result in increases in your insurance rates - it depends on your insurer - some insurers may decide to waive one or two minor offences without increasing your insurance rates.
When I posted my case, I wanted to learn if rule is same that not even allowed to touch in non moving car. Let's see if I get some leaniancy from procecutor.
If I pay online I will get 3 points so it's better to have trial and seek for some reduction of points.
Thanks everyone for sharing information.. it's tough but let's see...
1. According to prosecutor of York region, Ontario Court of Appeal has made a ruling that even if driver is stopped, as long as he/she was in an "alive lane" (as you were in this case) the offence has been committed.
2. I head on the radio news, do not have all the details, the lady came to a stop at the traffic light, this caused her phone to slide and fall on the floor of the car from the passenger seat next to her, she picked it up and put it back on the seat, for this she was charged and the courts upheld the charge.
I have a hard time buying the second one, most officers would observe to see what you do with the phone, but that is what was on the radio, so just watch out and best not to touch it at all.
Assuming the officers notes are okay, then this ticket is pretty much impossible to beat. The officer basically just has to testify that they saw you holding the phone (not even using it and not even on) and that is enough to convict.
Given that you were at a stop light, the Justice of the Peace MIGHT reduce the fine amount.
So again, assuming the officers notes are okay, then you would show up for trial and ask prosecutor if the officer will be attending. If yes, then you say you want to plead guilty with an explanation and ask for a reduced fine. You will still be found guilty if you do this and the demerits will still apply and your insurance can still go up. The only thing you can possiby get reduced is the amount of the fine. You give the JP a sob story about finances and how you did not know you couldn't touch it when stopped and how you learned your lesson and won't do it again.
Sometimes we learn hard way.
* get in car close door
* put phone in drivers door pocket (theres a specfic) ledge there
* switch on bluetooth (in car)
* select some banging tunes
* drop the top
and I' away
LOLZ point is I NEVER touch the phone, I have a buttong on my steering wheel to answer through HF
I have a dial OR voice activated to make a call.
* NO you cant touch your phone
* Speeding is speeding
* Challenge every ticket
* Impaired driving, you should be locked up UNDER the jail
- Did the officer ask you to see the cell phone when he stopped you?
- Is the officer able to recall if the cell phone was a smartphone touchscreen type of device or a blackberry type of device or a flip phone, etc?
- Is the officer able to recall the colour of the cell phone?
- Is it true that other things can appear to be a cell phone? If so, how can the officer know for sure that it was a cell phone?
- Could the cell phone have been any number of other things (i.e. digital recording device, bluetooth speaker, wallet, calculator, etc.)
- What was different about the cell phone that made it different from any number of other things?
(Here is an example of a case where the charge was successfully disputed through this type of cross-examination:
http://www.trafficticketfighters.ca/wp- ... -phone.pdf)
I like the reference to common law defence of de minimis non curat lex http://www.duhaime.org/LegalDictionary/ ... atLex.aspx I would definitely use that as a defense for the situation where you used your phone while you were stopped!
Unfortunately, there's not much case law on it because it's one of the more complex common law defences and it's not used very often. But I would say that it's quite simple to understand and it could be used a lot more often, especially for parking or traffic offences.
Here would be a general argument to be used in court: "The purpose of the de minimis rule is to avoid the burdening of the courts with minimal complaints which would result in wasted costs, resources and time. It is further to avoid the situation where more serious crimes and claims take even longer to be dealt with due to these trivial issues taking up the courtÃ¢Â€Â™s time. This will result in the criminal justice system and the court system in general being brought into disrepute for not being able to deal with serious matters efficiently. The defence of de minimis does not mean that the act is justified; it remains unlawful, but on account of its triviality it goes unpunished. Generally, the justifications for a de minimis excuse are that: (1) it reserves the application of the law to serious misconduct; (2) it protects an accused from the stigma of a conviction and from the imposition of severe penalties for relatively trivial conduct; and (3) it saves courts from being swamped by an enormous number of trivial cases."
In general, a lot of parking and traffic offences would fit this criteria. And since "de minimis non curat lex" is a common law defence, it applies to cases under the Provincial Offences Act:
"80. Every rule and principle of the common law that renders any circumstance a justification or excuse for an act or a defence to a charge continues in force and applies in respect of offences..."
This defence could be used, for example, someone is charged with assault for bumping into them on a busy street; or someone is charged with possession of illegal drugs with an insignificant amount like 1 gram; or someone gets a speeding ticket for 1km/h over the speed limit; or someone gets a parking ticket at 9:01 when they paid up to 9:00, etc. etc.
I have not yet tested this defence out in court for parking or traffic offences, but I definitely intend on bringing it up in future cases. I don't know how well it would stick with a justice, though.