Use handheld device ticket | GTAMotorcycle.com

Use handheld device ticket

C

Craneopbru

Well-known member
I was driving home the other day on Weston south of Teston and I reached with my right hand to scratch my right ear; wouldn't you know it that just as I did this I passed a cruiser coming out of a side street. Next thing I know, I'm getting pulled over.

The cop tells me he pulled me over because I was talking on my cell phone. I said that I wasn't, to which he responded that he saw me with my hand at the side of my head covering my ear. I told him that I had an itch and that I was scratching my ear. He asked me where my phone was and I pointed it out on the centre console.

Obviously I'm going to fight it, I asked for a meeting with the prosecutor first, is there anything I can say that will get the charge dropped right there ?

If I have to take it to court, what can I ask for in the disclosure ? Can I request the cruiser video and audio recordings ? Should I tell the prosecutor that I intend on getting the video and audio disclosed where it will show the officer stating himself that he only saw my hand by my ear and did not see a phone ?

My plan is to get the officer to admit that regardless if what he thinks I was doing, it is possible that I could have just been scratching my ear. Any thoughts on this approach ?


Sent from my iPhone using Tapatalk
 
Couldn't they just find out via phone records that the cop was an idiot?

Sent from my SM-N900W8 using Tapatalk
 
Disclosure will have the officer's notes, you can request for cruiser video/audio... but it may or may not be available. You can start building a defence from where the officer saw you, and whether he could've seen a physical phone next to your ear.

With conflicting evidence presented in court, the Justice of Peace will have to side with the person who was in the best position to see the events (that's you). You'll have to be unshakable under cross-examination.

I don't believe the prosecutor will help you, nor withdraw the charge. Ear scratching (holding phone), and chewing gum (talking) is something they hear all day long.

This is a trial matter through and through, where a JP will have to make a decision.
 
If he did not see the device in your hand, he has no right to give you a ticket. This is ridiculous, if you're telling the truth...
 
Unfortunately, the 2014 distracted driver puts a lot more effort into using their $800 smartphone while driving w/o the aid of $20 hands-free modules (ie. car vent clip, windshield mount, blue-tooth headset).

As a result, police get real creative and let their imagination run free when they see drivers staring at their lap or cup their ear for a period of time.

Even with a lie detector the officer may pass in his belief the OP was using a phone.
 
Its a bull **** law twice last summer I almost got smoked (while on my bike) by a durham regional police car/truck when they were on there phones both were I phones and the police are not issiued I phones the police should NOT be exempt from this law they do not have super powers
 
contact148 said:
Its a bull **** law twice last summer I almost got smoked (while on my bike) by a durham regional police car/truck when they were on there phones both were I phones and the police are not issiued I phones the police should NOT be exempt from this law they do not have super powers
Click to expand...

Most Police in Hamilton are not issued phones at all. My buddy is forced to use his personal phone.
 
rye said:
....This is ridiculous, if you're telling the truth...
Click to expand...

Do you really think somebody would do that ? Just come on the internet and lie....

Serious though, that's actually what happened, that's why I'm super ******. I hate this law and think it's utter ********, I use my phone all the time while driving. I know the consequences and if I had actually been using my phone, I would have shut up and paid it. But to get the ticket when I legitimately was not using my phone is infuriating.
 
Bring your phone bill to the court as evidence that you weren't using your phone. It's at least worth a try, as most bills are itemized. Hopefully you didn't use your phone soon before or after the ticket, so that it's clear that you weren't using it at the time.

My phone is actually about 8 feet away from me, in my car, so there's clearly no way I can have been using it if I'm pulled over.
 
IIRC a similar charge went to the higher courts and lost. You can't even touch your phone while driving. A woman was charged for picking up her phone when it slid off the seat. Showing records that it wasn't being used had no effect.

The thing that irks me the most is that the law doesn't recognise that the conversation is the distraction, not the device.
 
nobbie48 said:
IIRC a similar charge went to the higher courts and lost. You can't even touch your phone while driving. A woman was charged for picking up her phone when it slid off the seat. Showing records that it wasn't being used had no effect.

The thing that irks me the most is that the law doesn't recognise that the conversation is the distraction, not the device.
Click to expand...

Yes, that's true enough, but reasonable doubt still enters into it. If doubt can be created as to whether the officer could even see the phone, when there actually was no phone, then it's a walk. My phone is in the back so that if an officer suggests that it was in my hand I can get out of the car, go to the hatch, and pull it out of my knapsack. That should stop me from getting the ticket in the first place and if I ever need to actually use it, my Bluetooth headset will still reach it.
 
Rob MacLennan said:
Bring your phone bill to the court as evidence that you weren't using your phone. It's at least worth a try, as most bills are itemized. Hopefully you didn't use your phone soon before or after the ticket, so that it's clear that you weren't using it at the time.

My phone is actually about 8 feet away from me, in my car, so there's clearly no way I can have been using it if I'm pulled over.
Click to expand...


This. Your bill can set you free.

The cop might ask why your phone was accessible on the centre console too.


Are you serious about "who would come on the internet and lie" bit? or is my sarcasm detector faulty?
 
Unfortunately the phone bill will not set you free, the charge isn't for using the phone... it's for holding it. The Ontario Court of Appeals have already ruled that the prosecution need not prove the device was in use.

R. v. Kazemi, 2013 ONCA 585 (CanLII) - COURT OF APPEAL FOR ONTARIO: http://canlii.ca/t/g0qn4
R. v. Pizzurro, 2013 ONCA 584 (CanLII) - COURT OF APPEAL FOR ONTARIO: http://canlii.ca/t/g0qn3

[13] ... It is best served by applying the requirement that the device be capable of receiving or transmitting only to prescribed devices, but not to cell phones. Road safety and driver attentiveness to driving are best achieved by entirely prohibiting a driver from holding or using a cell phone while driving. To hold out the possibility that the driver may escape the prohibition because the cell phone is not shown to be capable of communicating, however temporarily, is to tempt the driver to a course of conduct that risks undermining these objectives.

[14] For these reasons I conclude that s. 78.1(1) of the HTA does not require that the cell phone held or used by a driver while driving be shown to be capable of receiving or transmitting telephone communications, electronic data, mail or text messages.​

Just to throw this out there, it's also possible to orally communicate using applications like: Viber, ooVoo & Skype which wouldn't show up on your wireless phone bill.
 
iFly55 said:
Unfortunately the phone bill will not set you free, the charge isn't for using the phone... it's for holding it. The Ontario Court of Appeals have already ruled that the prosecution need not prove the device was in use.

R. v. Kazemi, 2013 ONCA 585 (CanLII) - COURT OF APPEAL FOR ONTARIO: http://canlii.ca/t/g0qn4
R. v. Pizzurro, 2013 ONCA 584 (CanLII) - COURT OF APPEAL FOR ONTARIO: http://canlii.ca/t/g0qn3
[13] ... It is best served by applying the requirement that the device be capable of receiving or transmitting only to prescribed devices, but not to cell phones. Road safety and driver attentiveness to driving are best achieved by entirely prohibiting a driver from holding or using a cell phone while driving. To hold out the possibility that the driver may escape the prohibition because the cell phone is not shown to be capable of communicating, however temporarily, is to tempt the driver to a course of conduct that risks undermining these objectives.

[14] For these reasons I conclude that s. 78.1(1) of the HTA does not require that the cell phone held or used by a driver while driving be shown to be capable of receiving or transmitting telephone communications, electronic data, mail or text messages.​

Just to throw this out there, it's also possible to orally communicate using applications like: Viber, ooVoo & Skype which wouldn't show up on your wireless phone bill.
Click to expand...

That's why I mentioned you need to create doubt that the officer could have even seen a phone. He'll certainly say that he saw one, which would be enough to convict based on the case law.
 
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
 
Jimsun said:
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.


He will be the idiot
Click to expand...

^ This.

Subscribed. One "idiiot" will come out from all this. Can't wait to find out who.
 
The ticket is still good if you are "holding" the phone. You do not need to be actually using it to be found guilty. So showing the bill will only prove your ignorance of the law. Better to go with the original argument of scratching the ear, not even holding the phone. At least that's what I think.
 
skapan said:
The ticket is still good if you are "holding" the phone. You do not need to be actually using it to be found guilty. So showing the bill will only prove your ignorance of the law. Better to go with the original argument of scratching the ear, not even holding the phone. At least that's what I think.
Click to expand...

It's not the law that he would be showing ignorance of, but the case law. It's pretty tough for regular citizens to be up on case law. This can result in some leniency from the court, though that should not be depended upon.

The tactic of having the officer state that he witnessed a device in use might well be a good one, as showing that it was not can create reasonable doubt.
 
You must log in or register to reply here.

Back
Top Bottom