“Advice On 78.1(1) Handheld Communication Device Ticket”

This is my first time getting a traffic ticket and I would really appreciate advice on how to approach this.

I was stopped back in January and issued a ticket for "DRIVE - HANDHELD COMMUNICATION DEVICE". I requested disclosure, and received:

1) DVD with the police cruises dash cam video with audio

2) Police officers notes

The dash cam video does not show anything of value, and I am not visible at all at any point. The video does include the entire conversation that I had with the police officer.

Here are the notes from the police officer:

----------------

Weather: Cloudy Roads: dry, some areas wet.

In full uniform capacity, solo officer

As I drove along I observed a vehicle silver in colour Mini Cooper on my right side and the driver had his cellphone with black cover on his left hand near his left ear.

The lights changed to green I pulled over behind the drivers vehicle and I stopped. The driver was the only occupant.

I approached to the driver who advised me he was on a "business call". I demanded his D/L, Ins. and R/O; all documents in order.

------------------

I few observations regarding my exchange with the officer:

- As mentioned in the notes, the officer asked my why I was on the phone and I said I was on a "business call". Does this count as an admittance of guilt? As I understand I am legally allowed to carry out a phone call using handsfree means, and neither the notes or the verbal exchange with the police officer has any specific indication of physically holding the phone to carry out the phone call.

- The notes do not provide very many details about the device he saw, only that the case is black. The officer never asked me to show him the device I was holding at any point, and there would be no way for him to have seen my phone at all, as it was inside the driver side storage compartment at the time. Does this open up an opportunity for casting doubt on whether what the officer saw was beyond reasonable doubt a cellphone?

This will be my first time going to court, so I would like to be as prepared as possible.

Any advice is greatly appreciated. Thanks in advanced!

What was in your hand?

These tickets are almost impossible to beat... officer testifies they saw you on your phone and unless you and another witness can testify that you were not, you will be found guilty.

The charge is for HOLDING the device. You are allowed to use handsfree mode only if the device is secured to the vehicle somehow. They do not have to prove the device was even on, they only need to prove you were holding some kind of communications device.

If you take this to trial, you will almost 100% lose, so you might be better asking prosecutor if they will agree to a reduced fine if you plead guilty (ask this when you meet them before trial starts). If they agree then great. If they do not agree, then you can still ask for a reduction when you get up in front of the Justice of the Peace. They can NOT reduce the demerits points, but the fine has some leeway. Just say how sorry you are and how you have learned your lessons and how broke you are.

I'm beginning to see where OP is going with this. A lot of modern vehicles today come standard with built-in hands-free features, you simply connect the phone via bluetooth to the vehicle.

Now comes the question as to where do you have to place the actual phone. All that the HTA states is that "the device is placed securely in or mounted to the motor vehicle so that it does not move while the vehicle is in motion and the driver can see it at a quick glance and easily reach it without adjusting his or her driving position." This exemption is only for pressing a button.

Many people may just leave their phone in their purse (passenger or rear seat), and use the vehicle's built-in display system to negotiate the phone-call. You can even leave your phone in your truck or boot.

Is OP suggesting he had a black case (not hand-held) near his ear? Phone was in the side-storage compartment? Using hands-free mode in his vehicle for the "business call"?

Exemption for pressing buttons

14. (1) A person may drive a motor vehicle on a highway while pressing a button on a hand-held wireless communication device to make, answer or end a cell phone call or to transmit or receive voice communication on a two-way radio if the device is placed securely in or mounted to the motor vehicle so that it does not move while the vehicle is in motion and the driver can see it at a quick glance and easily reach it without adjusting his or her driving position. O. Reg. 366/09, s. 14 (1).

(2) A person may drive a motor vehicle on a highway while pressing a button on a device that is worn on his or her head or hung over or placed inside his or her ear or is attached to his or her clothing and is linked to a hand-held wireless communication device to make, answer or end a cell phone call or to transmit or receive voice communication on a two-way radio or a hand microphone or portable radio. O. Reg. 366/09, s. 14 (2).

Thanks for the responses.

I was not familiar with the law at the time, and as such, I thought I had broken the law for having a phone conversation while driving. After doing some research after the fact, I now know that it is legal to do so if the phone is operated using hands-free mode as per 78.1 (3):

Hands-free mode allowed

(3) Despite subsections (1) and (2), a person may drive a motor vehicle on a highway while using a device described in those

subsections in hands-free mode. 2009, c. 4, s. 2.

I use a phone mount in my car; I believe that constitutes a means of operating in hands free mode....

I was indeed carrying out a phone call when I was stopped by the police officer, and in panic I tossed my phone into the side storage compartment of my door, and it stayed there the entire time. I apologized several times and admitted I was in a business call because I thought I had broken the law.

I am not certain what the officer saw when he mentioned the black cover in his notes because I only received disclosure recently, and the stop happened back in January. The only thing I can think of is that I have a tendency to rest my head on my hand while driving... and I realize that is not a show stopping defense. Also my phone case is predominately green..

If your defence is that you had the phone mounted but took it out of the mount when you were pulled over and the officer thought your hand was a phone....I don't see a positive outcome for you.

You are not allowed to hold the phone at all. If it was mounted and you were using hands free mode while it was mounted and you never took it off the mount and you never held, then you might have a case.

If you actually took it off the mount though and were holding it at anytime then you do not have a case.

You say it was in a mount but you also say you put it in the side compartment so seems to me you were HOLDING it at some point.

The officer does not need to prove you were actually making a call, or that the phone was even on, or even capable of making a call. They only have to say they saw you holding it and you will be found guilty.

Just to clarify, the phone was moved from the phone mount to the door storage compartment after I had completely pulled over to the side, and fully stopped with the police cruiser behind me.

Did the officer see you move it?

It actually would have been better for you if it was still in the mount because you could have said "look it's in the mount, I was not holding it"

Anyways, get disclosure and see what the officers notes say and then we can better decide if you have a defense or not.

The OP already has disclosure.

Oh right, I did not look back up at the top of the thread!

So the officer is going to testify that they saw you on your phone, and you are going to testify that you were not on your phone but then moved it, so you by your own testimony they would find you guilty.

ShrekTek wrote:Did the officer see you move it?

It actually would have been better for you if it was still in the mount because you could have said "look it's in the mount, I was not holding it"

Anyways, get disclosure and see what the officers notes say and then we can better decide if you have a defense or not.

The officer did not see me move it. Unfortunately, I was under the impression that I was stopped for being in a call (was not aware that handsfree mode was allowed) or else I would have definitely cleared this up.

So... just to clarify... I was mistakenly stopped by the officer (did not commit any offence by using the phone mount), pulled over to the side accordingly and committed an offence after the fact?

I just remember one detail actually... I believe after I pulled over and stopped, I ended the call, and instead of returning it to the phone mount, it was placed in the door storage compartment...

If you take the witness stand and testify then you will lose the case because you will have to admit you moved the phone and therefore you are guilty of the charge.

However, you are not required to take the witness stand and have the right to not testify against yourself.

So this means the only way you can win is by cross-examining the officer on his testimony and trying to bring doubt to what he said. You will need to see his notes first though before you can prepare your cross-examination questions.

Depending how good the officers notes are, will determine whether you can beat it or not.

ShrekTek wrote:If you take the witness stand and testify then you will lose the case because you will have to admit you moved the phone and therefore you are guilty of the charge.

However, you are not required to take the witness stand and have the right to not testify against yourself.

So this means the only way you can win is by cross-examining the officer on his testimony and trying to bring doubt to what he said. You will need to see his notes first though before you can prepare your cross-examination questions.

Depending how good the officers notes are, will determine whether you can beat it or not.

Thanks for the advice. I posted the officers notes in the first post, but here it is again:

----------------

Weather: Cloudy Roads: dry, some areas wet.

In full uniform capacity, solo officer

As I drove along I observed a vehicle silver in colour Mini Cooper on my right side and the driver had his cellphone with black cover on his left hand near his left ear.

The lights changed to green I pulled over behind the drivers vehicle and I stopped. The driver was the only occupant.

I approached to the driver who advised me he was on a "business call". I demanded his D/L, Ins. and R/O; all documents in order.

------------------

I have some additional details regarding what happened that day in post #1.

Remember to that you can object when the officer starts to say anything that you said. When he starts to say "and the driver said" you can object and say "objection, officer can testify to any verbal statements without a voire dire".

However even if your comments are not entered into evidence, how do you get the officer to admit that he did not really see something in your hand? He says he did, so you need to question him and get him to agree that it could have been something other than a cell phone. If the officer is adamant that it was a cell phone then you will not beat the ticket. If you somehow get him to agree that it could have been something else, then during closing arguments you say to JP that "the officer admited that it could have been something else other than a cell phone and therefore this brings doubt to the charge and I should be found not guilty."