Drive - hand held communication device / sect. 78.1 (1) | GTAMotorcycle.com

Drive - hand held communication device / sect. 78.1 (1)

S

SONIC

Well-known member
A cop pulled me over in my car yesterday thinking I was using my phone, but was actually using my GPS, the portable ones that stick to your windshield. I didn't physically have it in my hand at the time, it was in the mount attached to the windshield but was entering an address on it.

However the cop claims he saw me using my cell phone, but it wasnt even out, i have a habit of putting it in my centre console box so i'm not tempted to answer it when driving. So when he came up to my window he says he pulled me over because he saw me using my cell phone, which i was not because it wasn't even out, and said I was using it, I explained that the only thing I was doing was fiddling around with the GPS and entering an address, other than that i don't know how that translates into me using a cell phone. So he asks me to see it and i pull it out of the centre console box, he says that's what he saw and walks away to go give me a ticket. As usual, typical bad attittude, no disucssion, he walks away in mid-sentence without any further discussion or allowing me to speak.

What I think he saw was me holding on to my note pad, about the size of a cell phone and white, which is the colour of my phone. I had the address on it and was typing the info into the gps. I tried to explain this and he said save it for court.

Has anyone faced or heard or of this type of situation where someone is ticketed with section 78.1(1) Drive - Handheld communication device? Would using a windshield mounted gps or holding a pad of paper that could look like a cell phone consitute this type of ticket?
 
SONIC said:
Can you provide more information? I wasn't holding anything, the GPS was mounted to the windshield.
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You dont have to be holding anything. Operating a GPS while driving falls under the same law.

I m not about to look up the HTA, but as the law was being implemented they gave many instances of a charge and this was one of them.
I also know this due to all the officer interactions ive had over the years.

One tried to get me in North Durham for the same thing, but than realized it was a can of pop i was drinking .. :)
 
infernobuster said:
You dont have to be holding anything. Operating a GPS while driving falls under the same law.

I m not about to look up the HTA, but as the law was being implemented they gave many instances of a charge and this was one of them.
I also know this due to all the officer interactions ive had over the years.

One tried to get me in North Durham for the same thing, but than realized it was a can of pop i was drinking .. :)
Click to expand...

Found this on another post, not sure if it has the whole thing:

"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."




So does this law apply to me changing radio stations or entering an address on a gps that's built into my dashboard? The HTA says "holding", i wasn't holding anything, but a piece of paper......
 
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SONIC said:
Found this on another post, not sure if it has the whole thing:

"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."




So does this law apply to me using my GPS built into my dashboard? I wasn't hold it, it was mounted to my windshield, i was typing on it.
Click to expand...


.. there ya go. You kinda answered your own question ..
 
infernobuster said:
.. there ya go. You kinda answered your own question ..
Click to expand...

Would a GPS be considered a handheld device if it's fixed to the windshield?

And not sure if this applies, but I take it highway is considered ANY type of road? I was on an "avenue."
 
If your phone is white and he saw you with something white in your hand and it was your note pad....say so in court and hope the judge has common sense. Get the cop's notes and make some of your own detailing the whole interaction.
 
SONIC said:
Would a GPS be considered a handheld device if it's fixed to the windshield?

And not sure if this applies, but I take it highway is considered ANY type of road? I was on an "avenue."
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HTA s.1 (1);

“highway” includes a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any part of which is intended for or used by the general public for the passage of vehicles and includes the area between the lateral property lines thereof

so yes, you were on a highway.
 
Now we're going to need dashcams inside the vehicles ! Good luck
 
SONIC said:
Would a GPS be considered a handheld device if it's fixed to the windshield?
Click to expand...

SONIC said:
So does this law apply to me changing radio stations or entering an address on a gps that's built into my dashboard? The HTA says "holding", i wasn't holding anything, but a piece of paper......
Click to expand...
There are no laws that apply to changing radio stations or adjusting your climate control.


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.​

HTA S78.1 exemptions: http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_090366_e.htm




Yes, a GPS is considered a wireless communication device because it receives and transmits electronic data with satellites. You weren't holding the GPS unit, but you were "touching/using" it while you were re-programming it.

You're legally allowed to program the GPS when you're parked off the 'highway'. You're not allowed to re-program it while you're driving.




http://www.mto.gov.on.ca/english/safety/distracted-driving/

Actions such as dialing or scrolling through contacts, or manually programming a GPS device, for example, are not allowed.​



http://www.theglobeandmail.com/glob...d-cant---do-behind-the-wheel/article17644659/

What you can't do legally

Here's what sections 78 and 78.1 say you can't do while driving, including while stopped at a light, according to the MTO:
  • Use hand-held wireless communication devices like cell phones, iPhones or BlackBerrys
  • Text, dial or e-mail
  • Use hand-held electronic entertainment devices, like iPods or other portable MP3 players and GameBoys
  • View display screens unrelated to driving on devices like laptops, tablets and DVD players
  • Program a GPS device, other than by voice commands.

What you can do legally

  • Use hands-free wireless communications devices with an earpiece, lapel button or Bluetooth device;
  • View the display screens of GPS units that are integrated into the vehicle or mounted on a dashboard and not obscuring the driver's view;
  • Use portable MP3 players hands-free, as long as they're secured in or mounted to the vehicle
  • Call 911




File the ticket for trial, and when you get your notice of trial... request for disclosure. You have to completely drop your GPS adjusting story, because that's an included offence under S78.1; you might be found guilty of using your GPS under your own admission rather than using your phone.

Pray that the officer didn't record your GPS story.

__________________________________________


Regarding your black notepad story, when a Justice of Peace hears conflicting and compelling evidence. He'll have to side with the person who's in the best position to see what transpired, and that's you. As long as you're unshakeable under the crown's cross-examination, and your evidence is credible... then you should be able to get off of this one.
 
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iFly55 said:
There are no laws that apply to changing radio stations or adjusting your climate control.


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.​

HTA S78.1 exemptions: http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_090366_e.htm




Yes, a GPS is considered a wireless communication device because it receives and transmits electronic data with satellites. You weren't holding the GPS unit, but you were "touching/using" it while you were re-programming it.

You're legally allowed to program the GPS when you're parked off the 'highway'. You're not allowed to re-program it while you're driving.




http://www.mto.gov.on.ca/english/safety/distracted-driving/

Actions such as dialing or scrolling through contacts, or manually programming a GPS device, for example, are not allowed.​



http://www.theglobeandmail.com/glob...d-cant---do-behind-the-wheel/article17644659/

What you can't do legally

Here's what sections 78 and 78.1 say you can't do while driving, including while stopped at a light, according to the MTO:
  • Use hand-held wireless communication devices like cell phones, iPhones or BlackBerrys
  • Text, dial or e-mail
  • Use hand-held electronic entertainment devices, like iPods or other portable MP3 players and GameBoys
  • View display screens unrelated to driving on devices like laptops, tablets and DVD players
  • Program a GPS device, other than by voice commands.

What you can do legally

  • Use hands-free wireless communications devices with an earpiece, lapel button or Bluetooth device;
  • View the display screens of GPS units that are integrated into the vehicle or mounted on a dashboard and not obscuring the driver's view;
  • Use portable MP3 players hands-free, as long as they're secured in or mounted to the vehicle
  • Call 911




File the ticket for trial, and when you get your notice of trial... request for disclosure. You have to completely drop your GPS adjusting story, because that's an included offence under S78.1; you might be found guilty of using your GPS under your own admission rather than using your phone.

Pray that the officer didn't record your GPS story.

__________________________________________


Regarding your black notepad story, when a Justice of Peace hears conflicting and compelling evidence. He'll have to side with the person who's in the best position to see what transpired, and that's you. As long as you're unshakeable under the crown's cross-examination, and your evidence is credible... then you should be able to get off of this one.
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Damn it! Thanks for the response, and for backing up the info. Ok, i'm going to think about this a bit more before i decide how to proceed.

Another question, so depending on which option i choose to plea, there is an option to for early resolution with the preosecutor, has anyone had experience with this? If i choose this option and am not able to come to a resolution and decide i still want to take it to court, do i still have this option if Ive chosen to talk to the prosecutor?

Anyone have experience with talking with a prosecutor? Does the prosecutor and i get the transcripts before discussing or is this only available if we go to court? Whart's the best way to handle them?

At the end of the day i'm ok with just paying a fine, i just don't want any tickets on my record, it's perfect! I've never had an at fault accident in my life, and haven't gotten a ticket, any tickets in over 10 years.
 
The appropriate charge was laid as you were programming your GPS which as has been pointed out is specifically covered in the section you were charged with. Now you can go with the story that you were holding a white paper pad not the phone. At which point the crown, (if he has any common sense), will ask why were you holding your pad of paper. Remembering your under oath you would replay because I was entering an address into my GPS, Game, set match crown..

i would request disclosure. But your not likely to have it before your early resolution meeting. Also if you use the "I was holding a pad of paper", The crown will ask were you reading the pad of paper? Yes. They can then amend the charge to distracted driving, rather than hold handheld device.

If your honest with yourself, you did commit the offence, (programming GPS), just not using your phone. Both of which IMHO are equally bad, as your not watching the road and seeing me on my bike...lol

With the "push" for distracted driving laws your not likely going to find a crown willing to simply drop the charge, (these days it is taken as seriously as impaired driving).

There is a reason, (at least Garmins do), GPS flashes a warning when first turned on about NOT using it while driving.

Good luck, but if your going to beat this completely you will have to come up with a better plan of action than those you have presented here.
 
SONIC said:
A cop pulled me over in my car yesterday thinking I was using my phone, but was actually using my GPS, the portable ones that stick to your windshield. I didn't physically have it in my hand at the time, it was in the mount attached to the windshield but was entering an address on it.

However the cop claims he saw me using my cell phone, but it wasnt even out, i have a habit of putting it in my centre console box so i'm not tempted to answer it when driving. So when he came up to my window he says he pulled me over because he saw me using my cell phone, which i was not because it wasn't even out, and said I was using it, I explained that the only thing I was doing was fiddling around with the GPS and entering an address, other than that i don't know how that translates into me using a cell phone. So he asks me to see it and i pull it out of the centre console box, he says that's what he saw and walks away to go give me a ticket. As usual, typical bad attittude, no disucssion, he walks away in mid-sentence without any further discussion or allowing me to speak.

What I think he saw was me holding on to my note pad, about the size of a cell phone and white, which is the colour of my phone. I had the address on it and was typing the info into the gps. I tried to explain this and he said save it for court.

Has anyone faced or heard or of this type of situation where someone is ticketed with section 78.1(1) Drive - Handheld communication device? Would using a windshield mounted gps or holding a pad of paper that could look like a cell phone consitute this type of ticket?
Click to expand...

Here's my take on this:
If you were not holding a cell phone, you were charged under the wrong subsection. GPS devices fall squarely under the section of display screens. See below.
Exempt devices
7. The display screens of the following devices may be visible to any driver in a motor vehicle driven on a highway:
1. A device that displays,
i. information on the conditions, use and immediate environment of the vehicle, or
ii. information on road or weather conditions.
2. An ignition interlock device.
3. A car audio control that displays only text or static images.
4. A hand-held device that displays only text or static images and is connected directly into and operates using the audio system controls of the motor vehicle. O. Reg. 366/09, s. 7.
Requirement that display screens be secure
8. The exemptions in sections 2, 3, 4, 5, 6 and 7 apply only if the display screen of the computer, mobile data terminal or other device is placed securely in or mounted to the motor vehicle so that it does not move while the vehicle is in motion. O. Reg. 366/09, s. 8.

A GPS device, while capable of sending and receiving information/data, is covered specifically under the def'n of a display screen - for which there is an exemption if it's attached to the dash or windshield.

There is an exemption for the use of cell phones in that you are permitted to press 'a button' to send or receive a call, if the phone is similarly attached to the dash.

If you were pressing a button on the GPS, that's different than entering a whole address. It's still distracting and may get you in trouble.

Best bet is to tell the truth - you were charged for a cell phone offence, and you were not using your cell phone. Period. The prosecution may try to amend the charge to the correct subsection, and it will get a little tricky to wade through the legal mumbo-jumbo. If you're dead set on maintaining your perfect record, you may have luck with a paralegal service on this one.
 
Thanks for posting the relevant subsection. Question for clarification. Your view is that merely pushing a button on the gps "could get him into trouble", then stating entering an address was a no no. In his original posting he said he was holding a pad, (not illegal, but we can presume it contained an address), as he then said "I was entering an address into my gps"

Therefore, as per your advice to just tell the truth, would this not end in a conviction? He wasn't using his cell but he was, (as he described what he was doing), distracted driving..

Just seeking clarification for members.

Bike Cop said:
Here's my take on this:
If you were not holding a cell phone, you were charged under the wrong subsection. GPS devices fall squarely under the section of display screens. See below.
Exempt devices
7. The display screens of the following devices may be visible to any driver in a motor vehicle driven on a highway:
1. A device that displays,
i. information on the conditions, use and immediate environment of the vehicle, or
ii. information on road or weather conditions.
2. An ignition interlock device.
3. A car audio control that displays only text or static images.
4. A hand-held device that displays only text or static images and is connected directly into and operates using the audio system controls of the motor vehicle. O. Reg. 366/09, s. 7.
Requirement that display screens be secure
8. The exemptions in sections 2, 3, 4, 5, 6 and 7 apply only if the display screen of the computer, mobile data terminal or other device is placed securely in or mounted to the motor vehicle so that it does not move while the vehicle is in motion. O. Reg. 366/09, s. 8.

A GPS device, while capable of sending and receiving information/data, is covered specifically under the def'n of a display screen - for which there is an exemption if it's attached to the dash or windshield.

There is an exemption for the use of cell phones in that you are permitted to press 'a button' to send or receive a call, if the phone is similarly attached to the dash.

If you were pressing a button on the GPS, that's different than entering a whole address. It's still distracting and may get you in trouble.

Best bet is to tell the truth - you were charged for a cell phone offence, and you were not using your cell phone. Period. The prosecution may try to amend the charge to the correct subsection, and it will get a little tricky to wade through the legal mumbo-jumbo. If you're dead set on maintaining your perfect record, you may have luck with a paralegal service on this one.
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hedo2002 said:
Therefore, as per your advice to just tell the truth, would this not end in a conviction? He wasn't using his cell but he was, (as he described what he was doing), distracted driving..
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Not under that section, which pertains specifically to electronic devices, which is why I think that they should have updated the law regarding 'operation without due care and attention' rather than making up a new law, as an attempt to garner attention and votes.
 
Rob MacLennan said:
Not under that section, which pertains specifically to electronic devices, which is why I think that they should have updated the law regarding 'operation without due care and attention' rather than making up a new law, as an attempt to garner attention and votes.
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Agreed, unfortunately I think case law had a hand in making an update troublesome but none-the-less, they didn't try.
 
I agree under that section. But as Bike Cop said the crown can amend the original charge. My point in asking is if the OP "tells the truth" and says he was holding the pad and e3ntering an address into the GPS then isn't it likely they will simply amend his charge at which point he is sunk.

Similar thing happened to me a couple of years ago got pulled over for not wearing a seatbelt. I was wearing the seatbelt. The truck had been modified and the seatbelt anchor had been relocated, (placed lower on the door post). This meant the belt laid directly over my shoulder so the officer didn't see the seatbelt going from my shoulder to the door post, (which is where the anchor normally is). When asked by the crown how I wanted to proceed I said I was prepared for trial that day on the charge as laid. She asked what my defense was going to be I showed her what I had, (see below).

I said nothing when stopped. prior to going to court I had a mechanic relocate the anchor to the original placement and give me a statement indicating so. I also took photos to court showing where it was located when stopped and where it was after being fixed. Crown looked at photos and spoke to officer. he called me outside and said why didn't you tell me that when I stopped you? I said because then you would have issued an equipment violation, (which i would have lost).

The officer said well this now creates a doubt in my mind if you were wearing the seatbelt so I am asking the crown to withdraw the charge. Then he asked me how I knew he would have laid the equipment violation charge. I said I am an ex copper, that is what I would have done..lol

So had I "told the truth" when initially stopped I likely would have been convicted. But you HAVE to be prepared. Now the crown still "could" have amended the charge, but seeing the prep work I had done went a LONG way into the dismissal

Rob MacLennan said:
Not under that section, which pertains specifically to electronic devices, which is why I think that they should have updated the law regarding 'operation without due care and attention' rather than making up a new law, as an attempt to garner attention and votes.
Click to expand...
 
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