New driver who had phone mounted in car beats distraction ticket
VANCOUVER -- It’s not often a distracted driving ticket ends up before a Supreme Court judge. But a new driver from Burnaby, B.C. refused to accept his fine, arguing he shouldn’t have been ticketed for having his phone in sight, but not in use.
“If you've got the phone connected to your car and you're using GPS, music, or your phone features and you're an N or L driver, then you're violating the law,” said Vancouver lawyer Paul Doroshenko, who specializes in distracted driving cases. “Simply having it there never was a violation of the law, and people never should have been ticketed under those circumstances. ”
But some police officers are under the impression the law forbids new drivers from even having a phone that’s visible in the vehicle.
“Some senior officer says look, if you see an N or L driver with a phone anywhere in their field of view, you can give them a ticket for driving contrary to restriction. If your supervisor tells you that, that’s your interpretation of the law, right? But if you go back and take a look at the regulation you can see this exemption, it doesn’t apply that way,” said Doroshenko.
Madam Justice Watchuk agreed. She tossed out the ticket, writing: "The mere presence of the device within sight of the appellant was not sufficient to constitute 'use' of the device. As a result, the appellant’s conviction was not supported by the evidence."
The man who originally drafted B.C.’s distracted driving law is applauding the ruling.
"The Supreme Court justice got it right, in the opinion that was given, and the ruling that was given," said former solicitor general Kash Heed. “A lot of police agencies have it completely wrong, and that’s the disturbing part of it. After 10 years they still can't get it right."
Heed hopes this ruling will prompt police chiefs to talk to their members about what constitutes an offence for new drivers. Doroshenko says the ruling should bring clarity to the distracted driving law, and he has some advice for new drivers who’ve been ticketed for simply having a phone in sight.
"Some people will be able to appeal them, if you've fought them and lost and they're still within the appeal period. There’s other people who certainly are going to be in a circumstance where their matter is coming up for hearing in the next nine, ten months, where they will have a defense as a result of this."