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Hi,

So I got caught using my cell phone and was charged with 78(1).1

The situation was as follows. I was stopped at a light, a few cars back, and when it turned green nobody moved. Shortly after I noticed a cop walking through the intersection and assumed there was some kind of accident...the light then turned red so I put it in park and reached for my phone. He then walked by and caught me.

I'm looking for opinions on what you think of these two arguments that I'm considering giving to the judge (I already asked for a trial 8 months ago. I don't think an 11b 'stay' will be granted in this case). Or if you have other options I'm obviously open to those, too!

1. Tell the judge that, yes, I was using my phone, but it was only to turn on the Bluetooth (I have printed records showing there was no phone or SMS activity within the time frame of the incident) and that although technically I was breaking the law (maybe I don't want to use those words?) a conviction wouldn't be in the spirit of the law since I was clearly in a situation that was extenuating and I even took further precautions (putting it in park, of which I even pointed out the cop) to ensure the safety of the highway. Traffic was more than stopped, it was blocked.

2. Trying to prove that the cop didn't see what he is reporting to have seen. The notes indicate that he saw me holding a phone to my chest and when he got to the car asked if it was an iPhone. I said it was an Android. I believe I can use this evidence to bring reasonable doubt to what he saw: if he couldn't properly identify what I was holding then how does he know it was even a cell phone? It was sunny out (his notes) so maybe I was just cleaning my sunglasses (which are also black). I'm concerned about this defense because it's kind of sleazy; even though it's the truth it might not go over well with the judge.

I feel like being honest and showing the judge that my case is unique might be the better bet. Paying the fine (even a lowered one) is not the issue. I don't want the insurance hike!

Thanks for any thoughts you might have...

azdjedi wrote:I feel like being honest and showing the judge that my case is unique might be the better bet.

Your case is not unique. There's nothing unique about using a cell phone while sitting at a red light. Putting your vehicle in park has little meaning because it doesn't sound like you were either off the roadway or parked lawfully. Could you get out of your car and go shopping while your car sat there? If not, putting it in park wont help your case.

Adding further, devices are to be mounted or securely placed in your vehicle for button access. Using a headset that requires touching to turn on is also OK. Holding the device in your hand, if that's what happened, is going to be another argument against you.

You are free to continue your path towards trial, but I'd probably suggest another game plan.

azdjedi wrote:

2. Trying to prove that the cop didn't see what he is reporting to have seen. The notes indicate that he saw me holding a phone to my chest and when he got to the car asked if it was an iPhone. I said it was an Android. I believe I can use this evidence to bring reasonable doubt to what he saw: if he couldn't properly identify what I was holding then how does he know it was even a cell phone?

Please don't use these argument. This is not reasonable doubt. If anything, this will work against you. It makes you look like someone who is really grasping. Android is an operating system, not a phone manufacturer. Operating systems are not limited to their devices because it was packaged that way.