cellphone ticket?

[ajaxguy]

Except the distracted driving laws are not just limited to cell phones or other electronic devices. Eating or even drinking a beverage can "still" result in a distracted driving charge. Everyone focuses on cell phones, (due to the law being updated to include these devices), but the charge "can" and has been laid involving eating, reading papers, shaving, applying make up etc etc etc.

In this case the officer need not really prove it was a cell phone you were holding he may provide evidence that you were holding an object in your hand, which in his opinion caused you to be distracted. In reality if you weren't distracted by the phone then you likely would have seen his cruiser there and moved the item here he couldn't have seen it.

Other than your time, (attending court appearances and possible lost salary at work), it really costs nothing to fight it. You "may" be the one who is successful, BUT the appeals cases listed by iFly55 really don't paint a promising picture for success.

I understand the frustration of taking time from work to beat a ticket as I am in this process myself right now. I was stopped at 8 am Sunday on my work to work, (obviously by an officer who was lacking in his tickets this month). He gave me two tickets, one for obstructed plate. It has snowed in Port Perry Sunday morning and during the drive in my plate cover got covered with road salt etc. He said take the cover off, take a photo and go meet prosecutor, they will drop ticket. Second one was for not having a "validation sticker" on my registration. He said got to MTO get sticker show to crown charge withdrawn. Problem is he is WRONG on that ticket as I did a change of address AFTER I renewed plate and MTO doesn't supply new stickers, they print the info on FRONT of registration, (I checked with MTO and service Ontario). So that one will be a slam dunk AND I have a call into his supervisor, as it is a waste of public resources fro his not to know this and waste public money writing an improper ticket. I am fortunate beign self employed and the court house is only 1 km away so not a hassle for me, but frustrating none the less.

Now neither of these charges affect insurance as one is an "administrative" charge and other is an equipment violation.

Actually if you get a ticket drive with hand help electronic device like I did, then yes he has to prove that it was an electronic device. Distracted driving cannot be brought into the equation because that was not the charge on the ticket. It cant be changed in court on the fly to a distracted driving charge when you are in there fighting a hand held electronic device ticket.
If that was the case and the cop was not sure, then thats what he should have given me a ticket for, or anyone else for that matter who gets charged with this.

 

[carboncat]

fair enough.... but he still has to prove It was actually a cellphone I was holding based on the law ( holding a device able to transmit or receive data)

tell them it was an ipod

 

[ajaxguy]

tell them it was an ipod

Thats still an electronic device... but i do own one of these.. looks like a phone huh

http://www.alibaba.com/product-gs/1620205906/RFID_Blocking_Aluminum_Credit_Card_Holder.html

 

[hedo2002]

Actually if you get a ticket drive with hand help electronic device like I did, then yes he has to prove that it was an electronic device. Distracted driving cannot be brought into the equation because that was not the charge on the ticket. It cant be changed in court on the fly to a distracted driving charge when you are in there fighting a hand held electronic device ticket.
If that was the case and the cop was not sure, then thats what he should have given me a ticket for, or anyone else for that matter who gets charged with this.

Yes I wasn't stating in your case it was applicable just pointing out that it need not only be a handheld device, to lay a charge.

I wish you luck but as another poster said in most cases you end up having to prove your innocence. The officer will no doubt testify he gave you the ticket as he observed you holding your phone. You will then tell the JP that you weren't and in all likelihood a conviction will be registered. At that point it really is a "he said, he said scenario". The officer likely won't admit on the stand he "isn't sure or could have been mistaken", if that will be his testimony the crown will kill the case before trial.

Get disclosure see what he is going to testify, then try to make a deal with crown, for as you said a ticket which doesn't involve insurance.

 

[Splash]

Thats still an electronic device... but i do own one of these.. looks like a phone huh

It has to be a communication device... not an electronic device... if it was an electronic device then I'd be charged every time I go out... because I wear a watch.

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

 

[ajaxguy]

It has to be a communication device... not an electronic device... if it was an electronic device then I'd be charged every time I go out... because I wear a watch.

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

Sorry... but yes still not a communication device but looks like one.

 

[ajaxguy]

Yes I wasn't stating in your case it was applicable just pointing out that it need not only be a handheld device, to lay a charge.

I wish you luck but as another poster said in most cases you end up having to prove your innocence. The officer will no doubt testify he gave you the ticket as he observed you holding your phone. You will then tell the JP that you weren't and in all likelihood a conviction will be registered. At that point it really is a "he said, he said scenario". The officer likely won't admit on the stand he "isn't sure or could have been mistaken", if that will be his testimony the crown will kill the case before trial.

Get disclosure see what he is going to testify, then try to make a deal with crown, for as you said a ticket which doesn't involve insurance.

No your right... and it will always be he said she said with this charge. But if he admits that maybe it was possible that I could have been holding something other then a cellphone then why not.

 

[bboySushi]

I was hitting my phone against the steering wheel to the music but was not talking on it or even texting on it for goodness sake. I tried to explain to the officer but he wasnt hearing it.

1. Your quote above makes it seem like you have proven to the officer that you were holding a cell phone in your hand if you did explain that to him. That's all the officer has to say.

2. There is intent just by holding a phone in your hand - why else would you be holding it if you were not planning to use it at all during your drive?

 

[ajaxguy]

1. Your quote above makes it seem like you have proven to the officer that you were holding a cell phone in your hand if you did explain that to him. That's all the officer has to say.

2. There is intent just by holding a phone in your hand - why else would you be holding it if you were not planning to use it at all during your drive?

I am admitting to you guys that i was doing that...just be me saying to the officer i was banging on the steering wheel would have to be an assumption on his part that I meant with my cellphone. Even if he took it as that and put that in his notes, you can still fight his notes and if you can cast some doubt you have a chance.

 

[Scudzo_2]

fair enough.... but he still has to prove It was actually a cellphone I was holding based on the law ( holding a device able to transmit or receive data)

You've admitted your guilt here.....

 

[ajaxguy]

You've admitted your guilt here.....

Hold on lemme get that foil hat off your head

 

[Apollo95]

Your best case scenario right now would be to file your intention to choose trial. When you receive your notice of trial in the mail, request disclosure and go from there.

Without disclosure, we don't know what exactly the officer wrote during his traffic stop. Once you get the officer's notes, you can gauge what he wrote and expect what he's going to say at your trial.

+1

if you admit/testify you were holding an electronic device, doesn't matter what, iPod, stop watch…whatever, you will be convicted. the judge will just believe the officer.

99% chance, officer will show up, say he is certain, conditions were perfect, no other cars on the road etc… you windshield was crystal clean and he saw you from 1m away.

best chance is study the disclosure, hope for 11b in time frame, if not study the disclosure and try to find holes in his notes to point out and make him doubt or admit uncertainty (tough to do).

Good luck, hope you get the 11b.

also, depends on how reasonable the judge is, some are nicer than others, and don't favour the police testimony (understand that police are human and lie as often if not more under oath on the stand)

 

[iFly55]

http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90h08_e.htm#BK134

Hand-held devices prohibited
Wireless communication devices

78.1 (1) 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. 2009, c. 4, s. 2.​

______________________________________


Also some food for thought: the newer iterations of the iPod have WiFi capabilities. This actually means that S.78.1 of the HTA applies to any hand-held device which may have WiFi capabilities.

These WiFi capabilities allow the iPod to use functions like e-mail/texting/voice-calls through applications like whatsapp & Viber. Keep in mind that the crown doesn't even have to prove you have these apps installed, so long as your device is 'capable' of transmission.

There is actually no legislation that prohibits distracted driving (except for handheld communication devices): reading newspaper, eating food, applying cosmetics. Law Enforcement can only lay, S.130 'Careless Driving' - driving without due care and attention or without reasonable consideration for other persons. They're not going to bother unless your driving is visibly/measurably affected, and leading to an accident or possible collision.

 

[Splash]

http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90h08_e.htm#BK134

Hand-held devices prohibited
Wireless communication devices

78.1 (1) 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. 2009, c. 4, s. 2.​

______________________________________


Also some food for thought: the newer iterations of the iPod have WiFi capabilities. This actually means that S.78.1 of the HTA applies to any hand-held device which may have WiFi capabilities.

These WiFi capabilities allow the iPod to use functions like e-mail/texting/voice-calls through applications like whatsapp & Viber. Keep in mind that the crown doesn't even have to prove you have these apps installed, so long as your device is 'capable' of transmission.

There is actually no legislation that prohibits distracted driving (except for handheld communication devices): reading newspaper, eating food, applying cosmetics. Law Enforcement can only lay, S.130 'Careless Driving' - driving without due care and attention or without reasonable consideration for other persons. They're not going to bother unless your driving is visibly/measurably affected, and leading to an accident or possible collision.

really? You have a WiFi hotspot following your car everywhere you go? Cool.

 

[iFly55]

really? You have a WiFi hotspot following your car everywhere you go? Cool.

You're underestimating the Crown's burden of proof to secure a conviction for S.78.1. They do not need to show that you have a moving WiFi hotspot. They don't even have to show your iPod was turned on. They just need to show that you were holding a hand-held device "capable" of wireless transmission.

R. v. Pizzurro, 2013 ONCA 584 already says that even if you had a cellphone with no battery, no bars or no SIM... you can still be convicted. I think that could easily apply to an iPod with WiFi.

 

[ajaxguy]

+1

if you admit/testify you were holding an electronic device, doesn't matter what, iPod, stop watch…whatever, you will be convicted. the judge will just believe the officer.

99% chance, officer will show up, say he is certain, conditions were perfect, no other cars on the road etc… you windshield was crystal clean and he saw you from 1m away.

best chance is study the disclosure, hope for 11b in time frame, if not study the disclosure and try to find holes in his notes to point out and make him doubt or admit uncertainty (tough to do).

Good luck, hope you get the 11b.

also, depends on how reasonable the judge is, some are nicer than others, and don't favour the police testimony (understand that police are human and lie as often if not more under oath on the stand)

This is what sucks... because the cop could lie and his word most likely believed. I am worried now that when I said I was banging on my steering wheel he just assumed I meant with my phone although I did not tell him that.

Either way, gonna wait closer to the the 15 day mark and go request trial and then once I get a date will request disclosure and see what happens? I have requested good info for disclosure in regards to speeding but never this type of charge. What would be some good things to ask?

 

[Splash]

You're underestimating the Crown's burden of proof to secure a conviction for S.78.1. They do not need to show that you have a moving WiFi hotspot. They don't even have to show your iPod was turned on. They just need to show that you were holding a hand-held device "capable" of wireless transmission.

R. v. Pizzurro, 2013 ONCA 584 already says that even if you had a cellphone with no battery, no bars or no SIM... you can still be convicted. I think that could easily apply to an iPod with WiFi.

Well then show me a case where someone got convicted under this law while holding an ipod.

Also, I guess it's illegal to drive and wear Samsung's Galaxy Gear....

 

[ajaxguy]

Well then show me a case where someone got convicted under this law while holding an ipod.

Also, I guess it's illegal to drive and wear Samsung's Galaxy Gear....

You actually make a great point... I have a pebble watch which can transmit but I am not holding it but attached to me. Hmmmm wonder what could happen there? What if I was just holding my watch but it is a device like that.

 

[cbcanada]

Its a tough case, in all reality one that you wont win

"Why were you tapping on your steering wheel with your phone?"

Thats the first thing the JP will say. 100% they will not believe you.

In fact that statement may even tick off the JP more. As in dont lie to me.

Your best bet is to deal for the lowest form of punishment and play a sob story.. And thats if you have a clean record.

 

[ajaxguy]

Its a tough case, in all reality one that you wont win

"Why were you tapping on your steering wheel with your phone?"

Thats the first thing the JP will say. 100% they will not believe you.

In fact that statement may even tick off the JP more. As in dont lie to me.

Your best bet is to deal for the lowest form of punishment and play a sob story.. And thats if you have a clean record.

Ahhh your one of those half empty kinda guys. I believe that you can win any case, and actually with the JP it actually depends how they are feeling that day. My best friend is an OPP officer and told me, its really all about how they are feeling that day. It sounds bad, but its true.
I am not going to be using the defense that I was banging my cellphone on the steering wheel.. now that would be dumb now wouldnt it? The key is to make holes in the officers statement and what happened that day even if you did do it.