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Driver not in a position to have control of a vehicle, Invalid Fixed Penaly Notice
Monkey_Shuttle
post Wed, 26 Oct 2011 - 09:29
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Good Morning

I received a fixed penalty notice from Sussex Police for 'Driver not in a position to have control of a vehicle' last week and was provided with the conviction code BE46.

The officer was clearly a rookie and was having to refer to a manual at every point and I'm wondering whether he's made a mistake?

Only I cannot find conviction code BE46 anywhere on the internet, on the DVLA website or nor my insurers website.

When I surrendered my licence at the police station, they couldn't confirm the code and asked me what it said.
Stupidly I told him ' Driver not in proper control' and only when the officer turned his back to me on the phone and lowered his voice to the traffic unit (I could no longer hear what he was saying), did he come back and confirm what I had told him.

I've since called the traffic unit myself, who called me back (no doubt checking what the office had issued me with first) and confirmed; 'Driver not in a position to have control of a vehicle' but couldn't provide me with a DVLA code, despite having a look whilst we were on the phone.

As you can imagine I am very suspicious now, is this a valid conviction and if so, what’s the DVLA code for my insurers?

Thanks in advance ..
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post Wed, 26 Oct 2011 - 09:29
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CuriousOrange
post Wed, 26 Oct 2011 - 09:40
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The code on the ticket will be force local so irrelevant to you.

An FPN lets you deal with the matter without going to court. Mistakes on it don't prevent them taking you to court.

If you've surrendered your licence (i.e. the police now have it), you either pay the fine and collect your points or you tell them you want to go to court. If you do nothing they give you the points anyway and bump your fine up 50% or something like that, for your trouble.

How about a bit more information regarding the circumstances?
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BaggieBoy
post Wed, 26 Oct 2011 - 09:44
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The code will be a local force code which is quite usual and normal. Assuming you accept the FPN, when processed it will result in a standard DVLA code on your licence, possibly an MS60 (Offences not covered by other codes).
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Monkey_Shuttle
post Wed, 26 Oct 2011 - 10:53
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QUOTE (CuriousOrange @ Wed, 26 Oct 2011 - 10:40) *
The code on the ticket will be force local so irrelevant to you.

An FPN lets you deal with the matter without going to court. Mistakes on it don't prevent them taking you to court.

If you've surrendered your licence (i.e. the police now have it), you either pay the fine and collect your points or you tell them you want to go to court. If you do nothing they give you the points anyway and bump your fine up 50% or something like that, for your trouble.

How about a bit more information regarding the circumstances?


To be fair, they have case.

I picked my Blackberry up off the passenger seat and pressed the red key to highlight the screen to see whether any emails had been received.

It was never my intention to read any emails, it was when the Blackberry email server was down and I was looking to see whether it had been fixed and any emails had flitered through.
It was in my hand for 3<5 seconds max, which they acknoledged, but still issued me with the FPN.

I'm guessing because it was a rookie it was all part of his training, had it been a more established officer I'd like to think he had maybe taken a view on it.
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Logician
post Wed, 26 Oct 2011 - 11:08
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There are REPORTS that the Blackberry outage reduced road accidents!


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jobo
post Wed, 26 Oct 2011 - 12:46
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i though that the reason they brought in the moby laws, was there was an inherent weakness in the NiPC law, that the standard of your driving had to suffer as a result, and therefore just handling a moby with out some swerving wouldnt be enough to convict ?


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Monkey_Shuttle
post Wed, 26 Oct 2011 - 12:58
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QUOTE (jobo @ Wed, 26 Oct 2011 - 13:46) *
i though that the reason they brought in the moby laws, was there was an inherent weakness in the NiPC law, that the standard of your driving had to suffer as a result, and therefore just handling a moby with out some swerving wouldnt be enough to convict ?


Hummm, that would interesting to know, the offices notes for 'GROUNDS FOR INTERVENTION'; 'HOLDING MOBILE PHONE'

It certainly did not effect my driving, certainly no one swerving on the road
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jobo
post Wed, 26 Oct 2011 - 13:11
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with out saying anything definitive, this is one of those offences that seems to have mutated from its original purpose

The correct charge is not in a POSITION to have proper control

to which the court case went something like this

this person wasnt in proper control of his vehicle

yes i was, what was wrong with my driving

nothing

QED i was in control, so nothing wrong with my POSITION ?

NG

there is also a non endorsable alternative charge that doesnt require swerving, i got a ticket for it once, but im buggered if i can remember what it was


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jobo

anyone but Murray, Wish granted for another year,
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CuriousOrange
post Wed, 26 Oct 2011 - 13:28
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Ditto the above - just you holding the mobile isn't enough to find you guilty of not being in proper control.

That said, there's always the possibility that on requesting a court hearing they'd summons you for the mobile offence (which doesn't require a NIP) rather than control.

Even if they summons you for control, I think there's an outside chance they could amend it to the mobile offence based on the same circumstances (c.f. that Scunthorpe case).

Either way, it's always three points so you'd be gambling 'just' your time and money if you opt for court.

One other thing - I didn't think they had to demonstrate you were actually out of control, but if you're not driving erratically it can be very difficult for them to prove you weren't in a position to have proper control.

e.g. if you're going along with both hands off the wheel I don't think a lack of swerving helps; but just holding something in one hand wouldn't really cut it, trotting out the old gear-changing example.

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Logician
post Wed, 26 Oct 2011 - 16:10
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Particularly since the OP says he simply looked at the Blackberry. It would be interesting if ths was changed to the mobile offence, since the Blackberry server was down, this device was incapable of interactive communication. Possibly that is why the other offence was used.


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BaggieBoy
post Wed, 26 Oct 2011 - 17:26
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QUOTE (Logician @ Wed, 26 Oct 2011 - 17:10) *
since the Blackberry server was down,

I assume this was a joke. The offence occured last week, the RIM server issue was a few weeks ago.
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henrik777
post Wed, 26 Oct 2011 - 18:00
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QUOTE (BaggieBoy @ Wed, 26 Oct 2011 - 18:26) *
QUOTE (Logician @ Wed, 26 Oct 2011 - 17:10) *
since the Blackberry server was down,

I assume this was a joke. The offence occured last week, the RIM server issue was a few weeks ago.


QUOTE (Monkey_Shuttle @ Wed, 26 Oct 2011 - 11:53) *
QUOTE (CuriousOrange @ Wed, 26 Oct 2011 - 10:40) *
The code on the ticket will be force local so irrelevant to you.

An FPN lets you deal with the matter without going to court. Mistakes on it don't prevent them taking you to court.

If you've surrendered your licence (i.e. the police now have it), you either pay the fine and collect your points or you tell them you want to go to court. If you do nothing they give you the points anyway and bump your fine up 50% or something like that, for your trouble.

How about a bit more information regarding the circumstances?


To be fair, they have case.

I picked my Blackberry up off the passenger seat and pressed the red key to highlight the screen to see whether any emails had been received.

It was never my intention to read any emails, it was when the Blackberry email server was down and I was looking to see whether it had been fixed and any emails had flitered through.
It was in my hand for 3<5 seconds max, which they acknoledged, but still issued me with the FPN.

I'm guessing because it was a rookie it was all part of his training, had it been a more established officer I'd like to think he had maybe taken a view on it.



This post has been edited by henrik777: Wed, 26 Oct 2011 - 18:01
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captain swoop
post Wed, 26 Oct 2011 - 18:05
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It still worked as a phone and for SMS text
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Monkey_Shuttle
post Wed, 26 Oct 2011 - 18:41
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QUOTE (BaggieBoy @ Wed, 26 Oct 2011 - 18:26) *
QUOTE (Logician @ Wed, 26 Oct 2011 - 17:10) *
since the Blackberry server was down,

I assume this was a joke. The offence occured last week, the RIM server issue was a few weeks ago.


The offence was on the 12/10/2011 - The RIM email server was definitely down, the 'good cop' (the driver not reading me my rights) even jested; "I personally think it’s the Koreans hacking into the servers".
If only I had the evidence to support his views!
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jobo
post Wed, 26 Oct 2011 - 18:44
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its going off at a tangent, you would seem to have a workable defence to PC, they could change the charge to moby use, but then you have a workable defence to that as well

its up to you if you want to risk turning the 60 quid in to a couple of hundred plus costs if you lose


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jobo

anyone but Murray, Wish granted for another year,
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sgtdixie
post Thu, 27 Oct 2011 - 02:22
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The Prosecution do not need to prove you were swerving etc, all they have to prove is that your behaviour meant you were not in a position to properly control your vehicle.

I can't find the case but a conviction for this offence was obtained when a woman drove down a motorway using both hands to curl her hair. There was no suggestion she was swerving or that anyone watching her car would even know what she was doing (apart from the video car sat alongside her) but the contention was she would not have been able to control the car to the standard required. Similarly convictions for typing on a laptop and holding a map up so the driver couldn't actually see properly.

I do not believe that you would have a defence to the use mobile phone offence as email is an interactive communication by any definition and the defence of I hadn't actually received one is similar to writing a text and claiming that as you hadn't sent it you weren't communicating.

So what we need to know is not just what you did but how you did it, what speed were you going, what was the weather and traffic conditions, were you looking down for a prolonged period and anything else which may have given the Police cause to believe you couldn't control your vehicle.

Advice to Police re prosecution of mobile phone offences clearly states that if interactive communication is not going on or cannot be proved then the not in position etc offence is the correct offence provided the evidence supports it.
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