distracted driving

Distracted driving blitz serving tickets to BC drivers

BC is cracking down on distracted driving this month and it is already costing drivers. When the blitz started, RCMP set up a sign reading “Police Ahead — Stay off your phone” on the North Shore and ticketed 74 drivers in a two hour period. One driver in New Westminster was issued two distracted driving tickets within the space of seven minutes. In the South Okanagan, RCMP used a bus to peg 54 drivers using cellular devices.

Not only are you more likely to get ticketed for distracted driving, but tickets are also going to add up quicker under new government rules. Your premiums will increase by $740 if you get multiple distracted driving tickets in a three-year period. The total amount of premiums and fines could cost a staggering $2,000. Twelve thousand people in BC already have multiple distracted driving offences, so even one more ticket could come with a massive price tag. The change will result in $3–5 million in additional premiums for ICBC, meaning you can expect the government to try to use these tickets as a way to alleviate ICBC’s massive financial crisis.

But how far are police going to go? What is the threshold for getting a distracted driving ticket? Distracted driving is a complicated offence — many things can take a driver’s eyes off the road. We previously wrote about how even using your smartwatch can get you pegged for distracted driving by police. Unlike impaired driving where police must rely on breathalyzer tests to prove impairment, police only need to claim a motorist could have been using their cell phone to issue a fine.

If your phone is in your hand, you could be accused of distracted driving

It is remarkably easy for police to ticket you for distracted driving. If you use your phone as a GPS and it is not a hands-free device, checking it for directions while stopped at an intersection could lead to an officer accusing you of driving while distracted. What we’ve seen, not just in BC, but across Canada has been cops giving people tickets for what could be argued are non-distracting events.

You don’t even have to be using your phone — it could just be in your hand. Ontario’s Highway Traffic Act is more severe than BC’s Motor Vehicle Act when it comes to distracted driving. It says:

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.

How does this apply to drivers? Take R. v. Kazemi. In this case, an Ontario woman’s cell phone fell off her passenger seat while she was braking. When she got to a red light, she quickly reached down to pick it up. At this moment, she was seen by an officer and given a ticket.

The mere act of holding your phone in your hand is enough for police to give you a ticket. In Kazemi’s case, that ticket was worth $200. Kazemi appealed to the Ontario Court of Justice where the Justice of the Peace took issue with the interpretation that the momentary handling was sufficient to qualify as  “holding.”

But she still lost. Crown appealed the decision and the appeal judge said holding means any gripping of a cellular device. The appeal judge believed there needs to be a complete prohibition on having a cell phone in one’s hand while driving in the interest of road safety. Here’s what he said:

[pullquote]“The ordinary meaning of “holding” a cell phone is having it in one’s hand. The New Shorter Oxford Dictionary, 1993 defines “to hold” as “to have a grip on” or “to support in or with the hands”. There is no suggestion that only if one has the cell phone in one’s hand for a sustained period of time is one holding the cell phone,” the judge said.[/pullquote]

Even plugging your phone in can count as distracted driving

But that’s Ontario, BC has different laws around distracted driving right? Not exactly. Under Section 214.2(1) of BC’s Motor Vehicle Act states “a person must not use an electronic device while driving or operating a motor vehicle on the highway” and defines use as:

(a) holding the device in a position in which it may be used;

(b) operating one or more of the device’s functions;

(c) communicating orally by means of the device with another person or another device;

(d) taking another action that is set out in the regulations by means of, with or in relation to an electronic device.

We found one case from last year where all the driver claimed to be doing was plugging his phone in to charge and doing so did not constitute holding the device in a way where it could be used. Mr Jahani was stopped at an intersection in North Vancouver while he was waiting for the light to change. Knowing that the phone needed to be charged, he reached down to plug it in with the screen facing away from him. At this moment, an officer knocked on his window and issued him a ticket for distracted driving.

Mr. Jahani fought the ticket and submitted his personal cell phone records to confirm that he was indeed not making a call at the time of driving. So we have a driver who was plugging in his cell phone, but not actively using it to send a text, make a call, or surf the web. Surely that would be enough to prove that he was not distracted? Nope. His appeal was dismissed.

“The cell phone records which may have displayed whether the Mr. Jahani was making a call when he was pulled over would have been immaterial to whether Mr. Jahani was holding it in a position to which it could have been used,” the judge said.

Jahani tried to argue that the mere act of holding his cell phone to plug it in did not qualify as a “use” of the device. While the judge agreed that the Motor Vehicle Act requires the device be held onto as well as an accompanying act of using it, he also found charging the phone to be a use of one of the device’s “functions”.

“It is in that context that I find that Mr. Jahani’s use of the phone, even for the purposes of charging, was a distracting event. His eyes were taken away from the roadway.  I find that there is no error in law in by the JJP in the circumstances. This was not the mere handling of the phone and was rather of the use of a function. In all the circumstances, I dismiss the appeal.”

What to do if you have a distracted driving ticket? 

With such a low bar for police to give out distracted driving tickets, even the slightest look down could result in you being accused of distracted driving. It is important to try and fight these tickets. Multiple tickets can take money from your pocket, but rising ICBC premiums can keep you paying for tickets long after you get them. That’s why if you have been tagged in the police’s most recent distracted driving blitz, you might want to contact a lawyer.

As the above cases have shown, there is a low bar for police to claim a driver was distracted.  BC police have been busy, giving out hundreds of distracted driving tickets throughout the province. These cases make the picture look bleak, but courts still must prove that you were distracted beyond a reasonable doubt. Cases like these are winnable, but you might need legal help if you need to defend your rights. We have been defending BC drivers for decades, including defending drivers from distracted driving charges.

If you have received a distracted driving ticket in BC during this recent blitz, give us a call for a free consultation at 604-608-1200. We may be able to help.

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