Use handheld device ticket | Page 2 | GTAMotorcycle.com

Use handheld device ticket

For better or worst as an ex copper I can say officers are pretty crafty when it comes to testifying. If i were the officer it likely wouldn't state that I saw the subject "talking" on the phone, (why would he as has already been shown he doesn't need to prove you were talking on the phone). The when asked in court to "repeat what you told me when you pulled me over" If I were testifying I would respond. I don't recall sir I make 10 - 15 traffic stops per shift I can't be expected to recall specific conversations.

Or if he did say I told you I pulled you over for "talking on your phone" then at that point you say but officer my cell bill shows that I wasn't talking on my phone at that time. The officer is likely to say... "well That is the phrase I use for everyone I stop for this charge as most people understand that wording rather than saying you were holding a device capable of receiving and transmitting voice and or data communications" However, to be clear I saw you holding such a device.

Rob's recommendation of keeping the device in a back pack in the rear hatch or trunk is about the only VIABLE defence. Even better if you request that the officers dash cam shows you opening hatch or trunk and removing said device from that location. BUT most cops aren't even going to pursue a charge if your phone is there...lol

Not suggesting the OP is guilty or even should have gotten the ticket in this case, just playing devil's advocate and giving the experience of how a copper on the stand thinks and may testify...

Jimsun said:
Officer said u were talking on the phone as he saw you holding the phone by your ear.
Now in court ask him to repeat what he told you when he pulled you over (request a disclosure).

Then as defense, you pull out your bill that shows your talk time. Now prove that there is no activity during a 5-15 minutes span in your phone bill when u got pulled over.

Your defense is that youre proving that you were not talking on the phone as that was his reason for pulling you over.

He will be the idiot
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hedo2002 said:
For better or worst as an ex copper I can say officers are pretty crafty when it comes to testifying. If i were the officer it likely wouldn't state that I saw the subject "talking" on the phone, (why would he as has already been shown he doesn't need to prove you were talking on the phone). The when asked in court to "repeat what you told me when you pulled me over" If I were testifying I would respond. I don't recall sir I make 10 - 15 traffic stops per shift I can't be expected to recall specific conversations.

Or if he did say I told you I pulled you over for "talking on your phone" then at that point you say but officer my cell bill shows that I wasn't talking on my phone at that time. The officer is likely to say... "well That is the phrase I use for everyone I stop for this charge as most people understand that wording rather than saying you were holding a device capable of receiving and transmitting voice and or data communications" However, to be clear I saw you holding such a device.

Rob's recommendation of keeping the device in a back pack in the rear hatch or trunk is about the only VIABLE defence. Even better if you request that the officers dash cam shows you opening hatch or trunk and removing said device from that location. BUT most cops aren't even going to pursue a charge if your phone is there...lol
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But you recall the officer actually telling the offender the reason he got pulled over. The fact that he did, must mean that he has and should have made a note on his notes regarding the matter. Officers should have be ready to disclose this information when requested by the defendant.

OP will then use this as his defense.

If not then all these idiots should win every device ticket as long as the device is not in your trunk/you dont own a device.
In addition, if a cop pulls u over. That cop, even if you have your phone on a vent clip holder or what not, can still issue u a ticket and say i saw him on his phone blah blah blah.
 
Well yes the officer WILL remember why he pulled the subject over... For the offence for which he wrote the ticket..lol He wouldn't say well I don't remember why I stopped you. But then I figured once I had you stopped I should charge you with something... No need to make a note WHY you stopped someone as long as you issue a ticket THAT is the reason you stopped them, hence the ticket.

I am not saying that I agree with this offence nor the wide discretion the officer has. You are correct, this should be a ticket easily won, in that it is a he said she said type of offence. As time goes on there will be a lawyer who will come up with a "reasonable defence" just as years ago a speeding ticket was hardly ever lost as the officer merely testified yes I operated the RADAR on that day at this location and I measured the subject's speed to be XX over. I stopped the subject and issued the ticket. Case over... Now as we know the officer has to be able to show the device was working properly, calibrated and tested. WAY back in the old days radar guns were sent out every 6 months for "certification" and the certificate was given to the crowns office and that served as proof the device was working properly. We used a "tuning fork" to "test" the devie at the beginning and the end of each shift if it was being used.

Until a lawyer comes up with some thing similar to put into question if you were holding the device, (which wins in court on a consistent basis), the best solution is to have it unavailable to the driver, (trunk or hatch area), or risk the ticket. Of course having a phone unavailable on a bike wiothout saddle bags is pretty tough.

Jimsun said:
But you recall the officer actually telling the offender the reason he got pulled over. The fact that he did, must mean that he has and should have made a note on his notes regarding the matter. Officers should have be ready to disclose this information when requested by the defendant.

OP will then use this as his defense.

If not then all these idiots should win every device ticket as long as the device is not in your trunk/you dont own a device.
In addition, if a cop pulls u over. That cop, even if you have your phone on a vent clip holder or what not, can still issue u a ticket and say i saw him on his phone blah blah blah.
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If the phone was mounted like a GPS, and the rider operates the phone (touching the screen) without holding it, to change a song, look up an address, etc. Would that still be illegal?


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JustinRR said:
If the phone was mounted like a GPS, and the rider operates the phone (touching the screen) without holding it, to change a song, look up an address, etc. Would that still be illegal?


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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.

(2) No person shall drive a motor vehicle on a highway while holding or using a hand-held electronic entertainment device or other prescribed device the primary use of which is unrelated to the safe operation of the motor vehicle. 2009, c. 4, s. 2.

(3) 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. 2009, c. 4, s. 2.
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Hope this helps
 
If you have a phone operating in hands-free mode, it's going to have to be someplace reasonably close to you, i.e. you could still touch it.

What about a car in which there is no place in the interior or luggage area that is beyond reach from the driver's seat ...

Friend of mine got out of a "carry alcohol in vehicle" ticket (or some such thing) because he had an old Corvette with the same situation - nowhere to put a bottle that was beyond reach of the driver.
 
Brian P said:
If you have a phone operating in hands-free mode, it's going to have to be someplace reasonably close to you, i.e. you could still touch it.

What about a car in which there is no place in the interior or luggage area that is beyond reach from the driver's seat ...

Friend of mine got out of a "carry alcohol in vehicle" ticket (or some such thing) because he had an old Corvette with the same situation - nowhere to put a bottle that was beyond reach of the driver.
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It's not if you could touch it, but rather if you DO touch it.

As for that bottle; it would have to be un-sealed to form that offence. I'd guess there's a little more to this story too (ie; how did the cop know the bottle was there?).
 
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coyo said:
It's not if you could touch it, but rather if you DO touch it.
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Problem is disproving the cop's allegations at the roadside ... (My parents had a "fail to wear seatbelt" situation like this ... they WERE wearing their belts, they always did/do, but the cop said they weren't ... He said - she said, the practical reality is that the cop wins in court)

coyo said:
As for that bottle; it would have to be un-sealed to form that offence. I'd guess there's a little more to this story too (ie; how did the cop know the bottle was there?).
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Oh, there was a lot more to that story ... ! ! !
 
Last time I went for an ERP meeting the crown came out and announced that anyone facing a cellphone charge should not waste their time, that that is the only charge judges will not even consider a plea.....and I heard a commercial on the radio a couple time this past week about how they have established a set fine for cellphones and that if you try to fight it they will charge you almost double in court just for trying.(not sure if in effect yet)

Personally I don't think an ERP is going to accomplish much because as the crown told me "I don't want to hear your story, this is what I'm willing to offer you, you can take it or go to trial"

If you're an extremely well spoken, confident person I'd say take it to court, if not, getting a lawyer is your best shot, cause they're really cracking down on cellphones.

I'm all for cellphone laws but if you weren't even using it, it's complete ********
 
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Well, I got the letter. Going to meet with the prosecutor on the 19th.

My plan is to say straight up that I was scratching my ear, the cop puled me over and said I was talking. I'll say that if I'm forced to take this to trial I will be requesting disclosure and will be requesting the video and audio from the cruiser that will show the officer stating that he only saw my hand covering my ear and did not state that he saw a device in my hand, I will also be producing the detailed cell phone bill showing that in fact no calls were placed from or received by my phone in at least 20 minutes before and after the ticket was handed out. The officer handed out an improper ticket and as such is wasting public resources and causing me a financial burden by missing work.
 
Brian P said:
Problem is disproving the cop's allegations at the roadside ... (My parents had a "fail to wear seatbelt" situation like this ... they WERE wearing their belts, they always did/do, but the cop said they weren't ... He said - she said, the practical reality is that the cop wins in court)
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He said, she said with no other evidence should go to the defence.
 
As an update to this...I had my court date today.

I'm pleased to say that the charges were withdrawn, even with the officer present.

I spoke to the prosecutor and showed her the an itemized phone bill showing no phone calls made or received over two hours prior and over an hour after the ticket.

She called the officer over to review his notes and he again stated that he saw me with a phone in my hand. I explained to the prosecutor that like I said to the officer at the roadside, my hand was to my ear because I was scratching my ear. The prosecutor told me to have a seat.

During one of the recess, the prosecutor went over and spoke to the officer about my matter and I overheard them discussing that even though my phone bill showed no calls placed, the act of holding the phone is enough.

The prosecutor called every single other matter before the court and made me wait until the very end. At 10:15, after waiting for nearly an hour and a half the prosecutor finally called me up, after stating my name, the prosecutor turns to the JP and says: "Your worship, the time is 10:15, you have to be in another courtroom at 10:30, there is insufficient time to proceed, the crown withdraws the charges."

They ******* out at the last second, but whatever; it worked out for me, in the end!




Sent from my iPhone using Tapatalk
 
In a busy courtroom, often times charges will be withdrawn for lack of time, not lack of evidence. If it were a more serious charge they would have requested an adjournment. Your lucky day!
 
Congrats OP you lucked out. Doesn't matter why or how the crown withdrew the charge only the final outcome that is important.
 
Good win.
 
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