What you need to know about cellphone tickets (distracted driving)

There has been much talk about tightening the regulation surrounding the use of cellphones while driving as statistics suggests that such use is responsible for many accidents. The original section of the Highway Traffic Act that prohibited using a phone while driving came into effect in 2009, and has remained the same since. It reads:

“no person shall drive a motor vehicle on a highway while holding or using a hand-held wireless communication device or other prescribed device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages.”

However, what brought this section to the forefront of media attention once again is that while the rule stayed the same, the consequences of disobeying changed.

Below is all you need to know about the offence, including the recent changes.

What are the consequences of a cellphone ticket?

You will now get three demerit points for a cellphone ticket – previously, there were no demerit points associated with the offence. The fine you can get if convicted of a cellphone ticket has more than doubled – it is currently set at a total of $490, though it may be as high as $1000. Clearly, cellphone tickets are now treated as much more serious offences.

Why can someone be issued a cellphone ticket?

There is a misconception that a driver can be given a cellphone ticket only if he or she was talking on the cellphone while driving. However, the text of the section is much more broad than that. A police can write a cellphone ticket not only if the driver is talking on or using a cellphone, but even just for holding it. This wording and application of the cellphone offence was challenged in the courts on different grounds, but the courts confirmed that just holding a cellphone in your hand may serve as a ground for conviction, even if you weren’t talking on it, but just dialling a number or checking something. Moreover, it’s not only using cellphones that’s prohibited by this law, but also using any other entertainment handheld devices such as iPods, PSPs, or anything of the kind.

Can I use my cellphone if I have a bluetooth device?

Absolutely. You can use your cellphone or any other device handsfree, and you won’t be issued a cellphone ticket. The rule is against holding the device in your hand, rather than talking. You can have a telephone conversation on the road as long as you don’t touch the phone with your hands. This means you can’t dial with your hands, either.

Are there  any exceptions from the cellphone rule?

Yes. You won’t be convicted in a cellphone ticket if you were using your cellphone in an emergency situation to call police, ambulance or fire services. Furthermore, it’s not offence to use your cellphone if you legally parked on the road, the car’s not moving, and no traffic is affected. There are also certain categories of drivers who have the right to use a cellphone while behind the wheel: drivers of an ambulance, fire department vehicles or police department cruisers.

Can I successfully defend against a cellphone ticket?

Quite possibly. First, this charge is subject to all the procedural safeguards available to defendants in other cases. The means that the prosecution has to disclose evidence, set case for trial and observe some other requirements. Failure to meet these requirements may lead to dismissal or staying of the charge.

Second, there is a defence of reasonable doubt that may be available. The defence may analyze all, even minor, circumstances, such as weather, road conditions, location of the driver and police officer, time of the day and other factors to cast doubt on the appropriateness of a cellphone ticket conviction. The defence can also attack as inappropriate certain assumptions of the police officer, if such are made. For example, the fact that a driver kept his eyes down should not lead a police officer to a conclusion that the driver was looking at the screen of a cellphone.

Sylvie, Toronto

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