A B.C. man has been found guilty of distracted driving for wearing his earbuds behind the wheel, even though his phone was out of battery and properly stored in the centre console of his vehicle.

Patrick Henry Grzelak got a ticketed back in October 2018 while driving home in Surrey.

Regardless of whether the phone was in use at the time, the judge ruled that the earbuds were part of the device since they were connected to it, and in B.C. it’s illegal to hold a phone in a position in which it may be used while driving.

According to Vancouver lawyer Paul Doroshenko, the crux of the problem was the fact that Grzelak’s earbuds were connected to his phone and that he was wearing them when he was stopped.

“The issue here came down to whether or not having the earbuds in constituted having the phone in a manner in which it could be used,” he said. “Ultimately in this decision, the judge came to the conclusion that having the earbuds in your ears is an extension of using the phone."

Doroshenko added that there is case law that supports the logic that, even if the phone is dead, holding it in such a way that it could still be used constitutes a distracted driving offence.

In Grzelak’s case, Justice Brent Adair cited a case from four years ago in which the court rejected the notion that a driver holding a phone with a dead battery should not be considered for a ticket.

"Since the earbuds were part of the electronic device and since the earbuds were in the defendant's ears, it necessarily follows that the defendant was holding the device (or part of the device) in a position in which it could be used, i.e. his ears," Adair wrote in his decision in Grzelak’s case.

Doroshenko said the case highlights that the complexities of B.C.'s relatively young distracted driving laws are open to judicial interpretation.

“All of this is subject to judicial interpretation, and every time one of these cases goes up to a higher level of court, we get a little bit clearer view of how it should be applied, and it’s useful for the police in these circumstances,” he said.

“Is this appealable? You can find grounds to appeal all sorts of things and certainly someone can appeal it. Whether they’re going to be successful – I’m not going to predict that.”

The lawyer’s advice to help drivers avoid finding themselves in Grzelak’s situation: have your phone fixed in a position where it doesn’t block your vision and use voice-activated features to operate it.

“You take a risk any time you touch it,” Doroshenko said. “If you’re going to program in your GPS, do it while you’re lawfully parked with your vehicle in park in a lawful parking spot.”

In B.C., Section 214.2 of the Motor Vehicle Act allows Class 5 drivers to use electronic devices in a "hands-free" manner as long as they are "securely fixed to the motor vehicle."

And how that rule is applied on the road and in courts has been tested before.

Last month, a B.C. Supreme Court Judge ruled that the "mere presence of a cellphone within sight of a driver" does not necessarily constitute distracted driving.

The decision came this month as a result of an appeal by a driver convicted in 2018 of using an electronic device while operating a motor vehicle on a highway.

That driver’s lawyer, Kyla Lee with Acumen Law, said a Vancouver police officer observed her client looking down while behind the wheel, adding that the officer walked up to the window of the vehicle and saw a cell phone wedged in the front passenger seat. The screen was facing up, but it was not illuminated.

Justice Murray Blok said the justice who handed down the original conviction "did not really address the question of 'use' of the device, a necessary element of the offence."

With files from CTV Vancouver’s Allison Hurst and CTVNews.ca’s Ben Cousins

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