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Mobile device offense, Stopped by police for mobile device/phone
Not Dave
post Wed, 29 Nov 2017 - 23:14
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I have been stopped and received a fixed penalty notice for using a mobile device (6 points) while driving a works van. When i was pulled over the device was in the dash board cradle as i was using the sat nav function (not programming it!!). The officer pulled me over after a round about and from a 40mph dual carriage way onto a cul de sac slip road marked with double yellow lines. I tried to enter the cul de sac as i did not feel the slip road was a safe place. The officer made it clear he wanted me to stay where i was by flashing his head lights and gesturing to the roadside.
I parked the vehicle and turned off the ignition and removed the key, the device stayed in the cradle. The officer approached the vehicle, i opened the door and he asked me to step out. I politely asked if i had been speeding and he replied no and again asked if i could leave the vehicle. I thought that maybe i had a brake light out or something so asked what he had stopped me for. He gave me my rights and said that i had been driving erratically and he had been following me for the last two miles or so and i had veered towards on coming traffic, i have no recollection of this happening. The two miles in question consist of national speed limit straights broken by two small roundabouts where you have you enter a 30mph zone. I do remember stopping at these roundabouts.
He then said that he had pulled up alongside and seen me looking at the device and i had not noticed him, he was in a low unmarked car and i was in a mercedes van. I do remember someone along side me after after the round about but i had to concentrate when they forced there way in behind me - that was when i saw the blue flashing lights.
After this i followed him to his car, (this is how i know it was low because it was a struggle to get in as i suffer from a bad back). In the police car he said he would not do me for erratic driving just the mobile device, i foolishly agreed thinking he was doing me a favour. He asked why i didn't hand the phone to my passenger (had a colleague with me), i just agreed with him but the phone had been in the cradle. I had received a call on the two mile stretch but i remember it being hands free and brief and to the point.
The officer asked for my license which i provided and he seemed surprised when i told him there were no points on it.
He completed his paperwork and i asked him how many points it would be and he told me 6 points and £200. I'd pretty much given up at this point and just said if you've caught me that's it to which he read me my rights again then said it would be worth going to court and pleading that it would be a financial burden if i was to receive the points which i thought was a bit of an odd if helpful thing to tell me.
I didn't ask to see any evidence, at the time i just assumed he was right. It wasn't until i had a couple of days to think over what happened and checked with my passenger and realised it might not be as cut and dried as he made out. I received the letter informing me of the points with 28 days to reply on the friday after it happened (the friday before at about 9.50am), i read up a bit more and realised he never said he saw me touch the phone and i never admitted that i had as it was hands free. I am still in doubt as to whether my driving was erratic as i didn't see any evidence. I could really do with some advice, it would be easier to take the points and be done with it but that he critisised my driving has annoyed me.
I am investing in a dashboard cam and whatever the outcome, i am determined not leave myself open again.
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post Wed, 29 Nov 2017 - 23:14
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Logician
post Thu, 30 Nov 2017 - 00:45
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He appears to have taken no action in respect of your driving as such so put your annoyance with that on one side, but if you were to go to court he might say that it was your erratic driving that first drew his attention and made him suspect you. You say " He asked why i didn't hand the phone to my passenger (had a colleague with me), i just agreed with him but the phone had been in the cradle." which will not play well in court as the officer will no doubt say that you did not dispute at the time that you were holding a mobile phone. The decision you have to make is whether to simply accept 6 points and a £200 penalty or reject the fixed penalty and go to court. If you are believed by the court you of course have no points and no financial penalty, apart from spending a day in court, but if you are convicted in court after pleading not guilty, you still get 6 points, a fine of 50% of your net weekly income, plus surcharge of 10% (minimum £30) and costs with a guideline of £620. The court will wonder why an officer should pick on you to claim you were using your mobile when there is no shortage of people blatantly using them. Were you holding something else that could be mistaken for a mobile?


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The Rookie
post Thu, 30 Nov 2017 - 05:17
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If it were to go to court purely for the mobile offence then you appear to have a good defence (if it's believed), however based on your driving they could opt for without due car and attention and if the officer's versions of how you were driving was accepted then you would be found guilty and whether or not you picked the mobile up wouldn't be relevant.


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southpaw82
post Thu, 30 Nov 2017 - 10:33
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Presumably the OP’s colleague could give evidence that the phone was in a cradle at all material times?


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Logician
post Thu, 30 Nov 2017 - 12:45
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QUOTE (The Rookie @ Thu, 30 Nov 2017 - 05:17) *
If it were to go to court purely for the mobile offence then you appear to have a good defence (if it's believed), however based on your driving they could opt for without due car and attention and if the officer's versions of how you were driving was accepted then you would be found guilty and whether or not you picked the mobile up wouldn't be relevant.


Since he was not warned at the time that consideration would be given to prosecuting him for careless driving, in fact he was told that it would not be, he could not be convicted of careless driving, I think.



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The Rookie
post Thu, 30 Nov 2017 - 17:41
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Well we've had the discussion before as to whether an accused has to be told the exact offences or just face prosecution, while I think it's unlikely, I don't think it's impossible.


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There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!

S172's
Rookies 1-0 Kent

Council PCN's
Rookies 1-0 Warwick
Rookies 1-0 Birmingham

PPC PCN's
Rookies 8-0 PPC's
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Logician
post Thu, 30 Nov 2017 - 18:12
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I think it is fairly clear that while the police officer need not select the exact offence, he must indicate the behaviour that might give rise to a prosecution, so if he says that prosecution might be considered for using a handheld mobile phone that is not a warning that the driver might be prosecuted for weaving down the road erratically. On the other hand if he said that the driving might give rise to various offences being considered for prosecution it would be covered.

In this particular instance since the policeman specifically said the erratic driving would not be considered for prosecution, there can be no way that could be considered a warning that it might be prosecuted.


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Unzippy
post Sat, 2 Dec 2017 - 13:11
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If you have a high up seating position and he had a low down position, was it even possible for him to see what he alledges?

This post has been edited by Unzippy: Sun, 3 Dec 2017 - 22:13
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cp8759
post Sat, 2 Dec 2017 - 13:27
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QUOTE (Logician @ Thu, 30 Nov 2017 - 18:12) *
I think it is fairly clear that while the police officer need not select the exact offence, he must indicate the behaviour that might give rise to a prosecution, so if he says that prosecution might be considered for using a handheld mobile phone that is not a warning that the driver might be prosecuted for weaving down the road erratically. On the other hand if he said that the driving might give rise to various offences being considered for prosecution it would be covered.

In this particular instance since the policeman specifically said the erratic driving would not be considered for prosecution, there can be no way that could be considered a warning that it might be prosecuted.

I would add that if a driver is told he will not be prosecuted for a given offence, there are grounds to argue a prosecution would be an abuse of process.
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