OHTA.ca

Hello everyone,

Please provide your advise and assistance:

I got a traffic ticket for "Drive - Hand held communication device / Section 78.1(1)" in Brampton on March 10 at 6:40pm. I opted for a trial and received a disclosure from officer. This is my first ticket ever in last 10 years driving history. My court date is in 3 weeks and i am preparing to defend myself.

Officers notes:

1. On the disclosure notes cover page, officer provides his information along with a note that reads " On March 10,2013 I was on a day shift 06:00 to 18:00" - where as the time on ticket is March 10/2013 ; 6:40pm.

2. Out of 4 pages of notes, first 2 and half page reads where he was located, speed limit on the road, which speeding radar he in carrying, his training of radars. weather on the day. Then he states that he was parked on a private driveway in "visibly" marked cruiser. He saw me holding a device to right ear wth right hand, mouth and lips moving. Then i stopped in front him (Traffic slow), gave him (officer) a eye contact and put hand down with phone. He followed me and gave me ticket on the main street.

My side:

1. I have a newer model car that comes with a bluetooth.

2. As per officer he was on duty 6am to 6pm. I received the ticket 6:40pm

3. Officer was with a female officer that he did not disclose in the ticket. Which confused me as they both approached me from either sides and did not disclose me why i was stopped, until i was handed the ticket.

4. Does the cop have keep pre printed notes. Why is he mentioning about speed radars, where as the ticket is for hand held device.

5. March 10 - 6:45 the day was clear but not enough light to spot what the driver is doing inside the car. If the cop can see a small cell phone in my hand, how come i did not see a fully marked cruiser straight ahead of me.

6. My mouth and lips can me moving if i am chewing a gum,

Finally, i was NOT on the phone. I wear prescription glasses that are heavy coz of thick glasses. I have a habit of lifting my frame from the side. This may have confused the officer but the point is how do i prove being innocent. Please help with your experience, what should i say and what may go against me.

Thanks.

Goldy wrote:

1. I have a newer model car that comes with a bluetooth.

Bluetooth is only as good as someone who has taken the time to pair the devices. It doesn't prove your innocence, but I guess it's a point that could be made.

Goldy wrote:

2. As per officer he was on duty 6am to 6pm. I received the ticket 6:40pm

He gave you the hours of a regular day shift. He could have been in overtime.

Goldy wrote:

3. Officer was with a female officer that he did not disclose in the ticket. Which confused me as they both approached me from either sides and did not disclose me why i was stopped, until i was handed the ticket.

He witnessed the charge and served you with a ticket. Had she been the officer who witnessed and he made the stop, then you'd have an argument. It doesn't sound like there is an issue here.

Goldy wrote:

4. Does the cop have keep pre printed notes. Why is he mentioning about speed radars, where as the ticket is for hand held device.

He had a speedtrap set up. All those details are all generic to that day and not unique to each stop. Everyone he pulls over for speeding would have pretty identical disclosure up to the point that deals with details specific to that stop. Either he was saving time or the device has a telescopic lens that he was using to witness you from afar, thus needing the information of his device. I've never used a lidar device, so I couldn't tell you if this is plausible, but there are officers here who might.

Goldy wrote:

5. March 10 - 6:45 the day was clear but not enough light to spot what the driver is doing inside the car. If the cop can see a small cell phone in my hand, how come i did not see a fully marked cruiser straight ahead of me.

If he was using a lidar device with a lens on it, he would see you way before you could see him. Either way, just because he is visible doesn't mean he will be noticed by every unique individual at exactly the same moment.

Goldy wrote:

6. My mouth and lips can me moving if i am chewing a gum,

An officer who is willing to say he saw you using a handheld device next to your ear is going to outweigh the bubble gum defense.

Goldy wrote:

Finally, i was NOT on the phone. I wear prescription glasses that are heavy coz of thick glasses. I have a habit of lifting my frame from the side. This may have confused the officer but the point is how do i prove being innocent. Please help with your experience, what should i say and what may go against me.

There's no easy answer. This type of ticket is usually your word versus an officers. You still have a couple weeks to work on it though.

4. Some Lidar will have a low power scope on them. The one I use regularly has an 8 power and it does help with seatbelt cel phone enforcement on occasion.

Thanks guys for your response. Just one thing to mention, as per the officers notes he was stationed at a T bone intersection. Monitoring both east bound / west bound traffic. He was sitting in the car when i had an eye contact with him. Not sure if he needs to be on the road (not in the car) with the lidar device pointing towards the incoming traffic.

Most lasers could be used from within a vehicle if stationary.

And T-bone is a type of steak, not intersection.

Hi Goldy,

It sounds like you are well on your way towards defending yourself in court. I've been to Ontario traffic court several times, once to defend myself and twice with friends/family.

I remember going through what you are doing now: Looking for inconsistencies in the details of how the officer proceeded with his enforcement. I would advise caution in bringing up minor inconsistencies in court unless the points you are making are solid. The Justice of the Peace (JP) is a human being. He will get annoyed with irrelevant things which he has heard before. Keep things to the point and move on. He wants to hear the truth, and ultimately he will be the one making the decisions and interpretations of the HTA and how the officer enforced the Act.

Many times, JPs will sound like they are already biased against the crowd of defendants, and will give a speech to everyone before the day's proceedings: "I see that a lot of people are here for speeding and cell phone offences. I think it is worth mentioning that there were X deaths on our highways last year, and that this court takes all offences very seriously...etc."

It sounds like if you are going to win, then you will have to testify to tell your side: That you were not using your cell phone, and that your were indeed adjusting your glasses. Of course, this enables the Crown to cross examine you as well. If you stick to the truth as you have described it, then there should be no problems.

Ultimately it will be your word against the officer's. Perhaps you can try to persuade the officer while he is on the stand that he is only 99% sure about you using a cell phone, and make him agree to the (remote) possibility that you were not using a cell phone. When you testify, you can state with 100% certainty that you weren't using a cell phone, and make this your primary argument when you summarize.

Good luck to you.

Matt

Thank you so much Matt. Your comments are much appreciated and honestly gave me a boost to defend myself.

Since this is my first time in court, i was bit confused and nervous. I guess now i will do a lot better. Will keep you posted how it goes.

Conclusion............

Being my first appearance in court, i was surprised to see that the prosecutor was very friends and nice. She would tell if the officer was present in court or not (she was honest to tell that). The person in front of me has 2 tickets, she said the officer is not present and that smart guy pleaded not quilt y. In my case the officer was present (had no badge number and name tag but how can i forget his face). He was the first in line to report to the prosecutor that he was there and could see him explaining the prosecutor that he was all prepared. Just like a studious student who is eager to answer all questions that the teacher asks.

As per the officers notes he had mentioned 3 times that he saw me on phone, where as i was not. Prosecutor offered me half ticket price and a reduced charge. She read the notes (disclosure) and suggested me to plead quilty as the case was strong. I did so because i had no proof that i was adjusting my glasses which arm on arm rest.

Justice of peace was very supportive and took all her time to listen to people who wanted time to pay at a later date.

My suggestion is to take a trial and hope officer does not show up. its important to remember the officers face. 3 officers did not show up during the session. Traffic ticket agents are a waste of money since they plead guilty on your behalf and reduce the fine that a person can do by them selves.

I wish cars have sensors or cameras that can be used as a witness for the defendant. I got nailed just because i had no proof and the office took his discrete time to concrete his notes. Its my first ticket in 10 years, i will now stop wearing glasses every time i drive (got my ticket on Sunday) and use contacts instead ( i wear them during weekends).