Is using a smart watch considered distracted driving?
The issue of whether using a smart watch is considered distracted driving hasn’t come up much in Canadian courts. Yet. But police across BC have already warned drivers that they will keep a vigilant watch for drivers using the new technology. One man in Quebec has already been ticketed and given four demerit points for using his Apple Watch. The driver argued his watch can’t be considered a “hand held” device, but it’s unclear whether his argument was met with any success.[pullquote]…we’re confident that in many cases innocent drivers will be ticketed for legally using their smart watches.[/pullquote]
In any case, comments from BC police suggest that officers will see using a smart watch as distracted driving. So it will likely be up to drivers themselves to challenge the tickets in court, in the event that police have come to the wrong conclusion.
“[The iWatch] has got apps, it’s got a GPS function, it has a microphone. It is supposed to be used because of all those little gizmos and technologies that are built into it, into its compact size.”
“So from my perspective, if people are using that, for any other function than the watch itself, then they’re basically trying to use technology while driving, which we all recognize is not a good choice.”
BC’s distracted driving legislation does not talk about smart watches
Police will say many things, but they’re just offering their own interpretation of the law. An important point to consider is that BC’s Motor Vehicle Act does not mention smart watches (or watches at all) in its list of definitions of what constitutes an “electronic device.” The Motor Vehicle Act sets out these definitions:
“electronic device” means:
a) a hand-held cellular telephone or another hand-held electronic devices that includes a telephone function,
b) a hand-held electronic device that is capable of transmitting or receiving electronic mail or other text-based messages, or
c) a prescribed class or type of electronic device;
The “prescribed” electronic devices, mentioned under Use of Electronic Devices While Driving Regulation are defined as:
a) electronic devices that include a hands-free telephone function
b) global positioning systems
c) hand-held electronic devices, one of the purposes of which is to compute data
d) hand-held audio players
e) hand microphones
Smart watches are “securely” attached to a person’s body
It’s arguable that some smart watches can be used as GPS devices and many include texting and telephone functions, working like an extension of the phone. However, BC’s legislation does allow “hands free” use of electronic devices. The legislation also helpfully defines what is considered “hands free” use.
Specifically for telephone functions, a person is permitted to use the device while driving if the device:
a) is installed in accordance with section 4 (securely fixed to the vehicle) and within easy reach of the driver’s seat, or worn securely on the person’s body
b) is voice-activated or requires only one touch in order to initiate, accept or end a call, and
c) in the case of a device that includes an earpiece, the earpiece is worn only in one ear
In our view, BC’s legislation clearly provides an exemption for smart watches. Many smart watches that can take calls will allow accepting or rejecting a call with just one touch, or even voice activation alone. It is our view that a smart watch, when worn securely and used in its telephone function, would not be considered distracted driving under the definitions of the Motor Vehicle Act.
What about a smart watch’s GPS device? Can I use that?
While BC’s Motor Vehicle Act appears to allow smart watches to be used as a telephone interface while behind the wheel, GPS devices are not permitted. The province’s Use of Electronic Devices Regulation sets out that GPS devices must be “securely fixed to the motor vehicle” in a way that doesn’t obstruct visibility, safety or the operating equipment in the vehicle. The Regulation does not account for a watch with a GPS function worn on the wrist.
Having said that, does an Apple Watch qualify as a GPS device? You can certainly use your watch to obtain directions as you would with a GPS device. The Apple Watch may prompt you for when to turn, and so on. But the Apple Watch itself, as far as we have been able to determine, does not employ a GPS receiver in the watch itself, rather it relies on a signal from the iPhone to which it is connected.
A technicality? Yes. But one that may provide a legitimate defence. Perhaps more interesting is the gigantic hurdle that the police would be required to overcome to demonstrate to the court beyond a reasonable doubt that any particular smart watch is a GPS device.
Texting on your smart watch?
Whether you’re reading email or responding to text messages on the screen of your smart watch, without a doubt you could be ticketed with Driving Without Due Care and Attention contrary to section 144(1)(a) of the Motor Vehicle Act.
This offence comes with a heavy fine, 6 demerit points and an automatic surcharge when you renew your licence. Driving Without Due care remains a catch-all in the Motor Vehicle Act for lots of different examples of bad driving or even simple moments of inattention to the task of driving.
Ticketed for distracted driving for using a smart watch?
Police have indicated they will be ticketing any driver caught using a smart watch behind the wheel. This is in contrast with what BC’s laws state, and we’re confident that in many cases innocent drivers will be ticketed for legally using their smart watches.
We know BC driving law and we know the defences. If police are saying that using a smart watch is considered distracted driving, we can challenge that. Give us a call at 604-608-1200. We will ensure your rights are protected, and that the law remains fair regardless of how police feel the law should be interpreted.