Can I use my cellphone while driving if it’s an emergency?
Courts have been incredibly strict when it comes to upholding the law against using an electronic device while operating a vehicle. Whether you are picking your phone up off the floor or simply plugging it in, the interpretation of “use” is so broad that it’s safer to never touch your phone if you want to avoid getting a ticket.
Therefore it was surprising when the BC police department tweeted last week to let people know that is is sometimes acceptable to use a cell phone while behind the wheel. Saanich Police released a video showing a driver trying to call 911 by using the Siri function on his phone. In the short clip, the man asks Siri to “call 911,” but it responds with “I don’t know who your mother is”.
The police’s caption to the video read: “A witness was trying to call 9-1-1 via Siri however, as you can see, had some difficulties. We’d like everyone to know that in this situation you CAN pick up your phone #ThanksSiri.”
Using a cellphone while driving to call 911
The BC government has been clamping down on distracted driving, including hiking up insurance premiums and traffic ticket fines for anyone convicted of using an electronic device behind the wheel. This may well discourage drivers from using their phones under any circumstances while driving but it seems the police are keen to make people aware that they can break this rule to contact 911 in an emergency.
Under the Motor Vehicle Act, there are certain permitted activities you can use an electronic device for while operating a vehicle, including “to call or send a message to a police force, fire department or ambulance service about an emergency”.
Drivers with New Driver ‘N’ or Learner ‘L’ licences are prohibited from using any electronic device while driving – including navigation and handsfree devices. These prohibitions do not apply, however, if the new driver is making an emergency call to 911.
Although this exception to the ban is enshrined in the law, it would likely work as a defence only in rare circumstances.
In this traffic court case, a man was charged with using an electronic device while operating a vehicle after a police officer discovered his phone charging and resting in a cupholder. Although there was no suggestion he was using the phone, plugging in a phone to charge is considered in case law as a use of one of the phone’s functions.
Nevertheless, the judicial justice found the defendant not guilty and noted that the “overwhelming inference” of the exception allowing drivers to use a phone to make a 911 call was that the device can be within arm’s reach. This suggests the principle of using a phone in an emergency is not only acceptable but also a justification for having the phone in close proximity.
Using Siri vs physically holding your phone
Using a hands-free, voice-activated service is considered a permitted use of an electronic device, so long as:
- It requires only one touch in order to initiate, accept or end a call
- The device is securely fixed to the vehicle or worn securely on the person’s body and is within easy reach of the driver’s seat
- The device does not obstruct the driver’s view or interfere with safely operating the vehicle’s equipment.
If the device includes an earpiece, this is also permitted to be used provided the earpiece can be worn in one ear only and put in place prior to driving.
Although using voice-activated technology is considered acceptable, there may be times when physically holding a phone is more efficient and safer. Many of us have experienced frustration with Siri and other hands-free services at the best of times. The technology may require you to speak clearly and slowly or repeat yourself multiple times in order to be understood, which could be incredibly difficult in an emergency. If time is of the essence, you are unlikely to waste precious seconds repeatedly yelling at a robot. It could be argued this is a greater distraction than the one caused by holding your phone to call or send a message, which may be what prompted Saanich police to issue its reminder.
What chance does an emergency defence have of succeeding in court?
It is hard to tell how the Courts may interpret when it is acceptable to call or text 911 in an emergency but it is possible they would apply a similar test as they would to a necessity defence:
In order for a necessity defence to be available, there are three requirements that must be met. There must be:
- Imminent peril or danger
- The accused must have had no reasonable legal alternative to the course of action he or she is undertaking
- The harm inflicted as a result of breaking the law must be proportional to the harm avoided
If you have the opportunity to pull over to the side of the road in a position that is not impeding traffic to make a 911 call, it is entirely possible a court may consider this to be a legal alternative.
It is also likely a driver would have to show they attempted to use the handsfree function first and failed before resorting to breaking the law by grabbing the cellphone and calling 911.
If you are on your way to the emergency room and are calling ahead, however, it is also possible a judge may see this as imminent peril and decide using the phone was proportional to the harm being avoided.
What to do if you have a distracted-driving ticket
The government is attempting to stamp out any use of an electronic device while driving, however, the Saanich Police Department’s video clip proves there can be extenuating circumstances.
It is important to try and fight these tickets, not only for the sake of your pocket but to ensure the law is enforced fairly to all drivers. If you have a distracted-driving ticket, we recommend you contact a lawyer to help you challenge it.
We have been defending BC drivers for decades, including clients issued with distracted-driving tickets.
If you have received a ticket for using an electronic device behind the wheel in BC, give us a call for a free consultation at 604-608-1200.