Is having a dead cell phone battery a distracted driving defence?

Having a dead cell phone battery would make it pretty difficult to use a cell phone. Impossible even. But is this a valid distracted driving defence?

A necessary element of the offence of using an electronic device while driving is the ‘use’ of the device. The difficulty is the term ‘use’ has been applied quite loosely in cell phone ticket cases. This can make them tough to beat. But can you be convicted of ‘using’ your phone even when it is switched off or out of battery?

Definition of ‘use’

The Motor Vehicle Act (MVA) defines ‘use’ as:

● Holding an electronic device in a position in which it can be used.

● Using one of the device’s functions.

● Talking with another person or another device.

As covered in a previous post, holding your phone in your hand can be enough to meet the offence of using an electronic device regardless of whether or not you are using it to text, call or use any other of the phone’s functions. All that matters is you were holding it in a position in which it can be used. Picking a loose phone up if it falls into the footwell while driving can be sufficient to meet the requirements of the offence, for example – even if you are stopped at a red light.

Dead battery distracted driving defence

A more recent case has clarified whether having a dead battery can protect you from a distracted driving conviction. The defendant was driving in Surrey with his iPhone “in the cubby hole in the dashboard”. He had earbuds in both ears with the cable plugged into the phone although the cell phone battery was dead. The screen was not illuminated, no music, no conversation or anything else was coming through the earbuds.

The issue was whether the defendant, who was self-represented in court, was “using” his cell phone as defined by the MVA. Although the cell phone was in the cubby hole, not in the defendant’s hands, or lap, in the end, this did not matter.

The Provincial Court Judicial Justice found: “In my view, by plugging the earbud wire into the iPhone, the defendant had enlarged the device, such that it included not only the iPhone (proper) but also attached speaker or earbuds.”

The judicial justice likened this to a keyboard attached to a device to input data, saying: “The keyboard would then be part of the electronic device.” Since the earbuds were “part of” the electronic device the Court found the defendant was holding the device in a position in which it could be used by having the earbuds in his ears.

You are allowed to drive with one earbud in, but having both constitutes a distracted driving offence. If the driver had not had two earbuds in it is possible he could have escaped the ticket or successfully challenged it in court.

The defence of the cell phone being dead was rejected by the judicial justice who stated: “Simply holding the device in a position in which it may be used constitutes the offence, even if it is temporarily inoperative.”

Having a phone within sight is no longer distracted driving

Convictions for using an electronic device while driving have often been upheld for having your phone unfixed in your car, such as in a cup holder or lying on the passenger seat. In this case, the cell phone was in a cubby hole, so could the defendant also have been found guilty on these grounds?

The MVA allows a device to be within sight of a driver if it is “securely fixed” such as in a dashboard-mounted holder. In a recent case, a defendant was stopped by a police officer who observed a cell phone “wedged between the folds of the passenger seat such that the screen was facing the driver”. The screen was not illuminated. At BC Supreme Court, the defence counsel argued that the holding of a device must be done an “accompanying act” in order to constitute “use” of the device.

The Supreme Court judge found that since the driver had not touched the device there was no “accompanying act” and he could not have been found to have been using it. The judge stated that “the mere presence of a cell phone within sight of a driver is not enough to secure a conviction”.

This would appear to be at odds with the decision against the driver who was using earbuds. Since he was simply wearing the earbuds, it could be argued there was no accompanying act. Either way, what this shows is the meaning of use is can be interpreted differently by courts.

What to do if you get a cell phone ticket

The penalties for using an electronic device while driving are severe. For a first offence, you face a fine of $368 and four penalty points. But that’s not all. You will also have to pay insurance premiums in the form of an extra $444 Driver Risk Premium. The four penalty points are also enough to trigger an added $210 Driver Penalty Point Premium, assuming you have a clean record. That single ticket could end up costing you more than $1,000. If you have a Class 7 ‘N’ or ‘L’ license, you can get a driving prohibition with one cell phone ticket. If you have a Class 5 license you can also receive a driving prohibition if you are issued two cell phone tickets within a year of each other or if you already have previous offences on your driving record.

If you decide to mount a distracted driving defence, it is recommended you hire a lawyer. The BC Driving Lawyers defend all kinds of traffic violations and we are well-versed in MVA regulations.

If you have a traffic ticket you would like to challenge, call us on 604-608-1200.