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atdrocker
Hi all,

I am looking for some advice about a FNP I got a couple of days ago, for driving while using a mobile phone. As I am unsure whether to pursue it in court or simply take the 3 points and £60 fine (and increased insurance for several years)

After driving for four hours from Poole to Swansea, I encountered a traffic jam on the outskirts of Swansea. The jam was caused by a combination of road works and heavy traffic. After a couple of minutes I realised I wasn't going anywhere for a while and turned off the engine.

My friend called my mobile, which I answered to let him know I was not going to be long, and would call him back when I arrived. I figured that this was within the law, based on my understanding of it.

Next thing I know, a police car drives up behind me and I am asked to step into the police car. The policeman says he "saw me on my mobile phone" while he was driving in the opposite direction across a couple of lanes of traffic. And I replied that "yes I was recieving a call as I was not driving and ended the call while I was still stationary". My understanding is that its illegal to drive and use a mobile.

The policeman then says that "he saw me using the phone while the car was moving". Which is untrue. He took a code from my phone which gives him access to what buttons I pressed or whatever, although I admitted that I was using a phone anyway, while stationary in a traffic jam. He gave me a FPN, taking down all my details. He didn't ask if the engine was off which I really should have tried to drum into him, although hindsight is a wonderful thing.

I have taken my licence to the police station but dont feel comfortable with accepting that I broke the law, to my understanding of the law regarding using mobile phones. I was certainly not driving while using a mobile phone which is what's written on the FPN.

So essentially, my question is - will mags look on me favorably if I went to court? Or will they believe the policeman, who was travelling in the opposite direction who saw me using a mobile across a couple of lanes of traffic and mistakenly thought I was moving...

Personally I think that I would face an uphill struggle. And unless I was stuck in a snow drift for 5 hours or stuck behind a multiple car pile up, they will simply think mobile phone + car and sentance a fine based on income and points.

Any advice would be marvelous




Logician
No one can give you a definitive answer to this, the law simply refers to "driving" without defining what constitutes driving. This might be resolved if anyone appeals a case to the higher courts, but at the moment that has not happened so you may get differing views from different benches of magistrates. Some will agree with you that if you are stopped in a jam and the engine is off you cannot be driving, others will say that just because you stopped moving temporarily because of a hold up does not mean you ceased to be driving. The fact that you turned the engine off is in your favour, but as you did not point that out to the officer even if you take it to court and get him to give evidence, at best he is likely to say he did not notice whether the engine was running or not when he spoke to you, but he saw your car moving beforehand anyway, which of course you will deny.

If I was you, unless I was on 9 points already, I would accept the FPN, because the odds will definitely be against you being found NG and if you lose the fine and costs will be considerably more than £60, although the points will be the same.
BB Law
I agree entirely with Logician's post.

It will all depend on who your Magistrates are, which court clerk you get, what the officer says and how you come across in the witness box.

You can try to increase the odds in your favour by employing a solicitor to cross examine the officer in an effective way and put forward case law to help on the issue of what constitutes driving but that is going to involve £350 - £600, which you would only get back if you won.

It all depends how much you are prepared to risk for justice.

If you wanted to go all out and fight this then you might consider making the following enquiries -

Is there any CCTV of the road that would show you remaining stationary for a significant time.

Is the person you were speaking to able to confirm you were stationary? (e.g. if you had told them whilst on the phone that you were sat in a jam not moving)

Is there someone who can confirm what time you started your journey? (You could then demonstrate that you had been stationary by showing how far you had travelled before the officer spoke to you.

Did the police car have any video recording equipment in use?

Would a mobile phone cell site analysis help in any way, (I'm not sure if they would be able to confirm that you were stationary but a call to a mobile phone forensic company would soon find this out)

It all depends on how much time, money and effort you are prepared to put in.

Good luck!

atdrocker
Thanks for the replies.
@Logican, I suspected as much and suppose I will just get on with being a safe driver instead of drag this out, as I am currently on 5 points. So this would take me to 8.

I got an SP30 in May 2009 but convicted in November 2009. So I would need to be careful of totting up until November 2012, I think.

Do offences clear after 3 years or is 3 for totting up, and they clear after 4?

I am with Direct Line insurance so maybe I will need to shop around.

@BB Law, I also agree with Logican. The main problem I face is the policeman reckons he saw me moving while using the phone. His version of what happened is inaccuate and would be a challenge to prove in court. So I guess I just put it down to experience and try and minimise using my car where possible until Nov 2012.

Or try and persuade my wife to learn how to drive. So I can take a passenger seat for a while.
picko
Points are valid from date of offence not date of conviction
jobo
yes its three years to clear

as the others have suggested, it either put them to proof or grit teeth and accept

im not quite as pessimistic as they are, but agree the odds are against you

it would be still 3 points if you took it to court and lost, but the fine would be more like 300 quid plus bits dependent on your income
Logician
Most basic offences are taken into account for totting purposes for 3 years from date of offence and can be removed from your licence after 4 years. (for completeness, some more serious offences count from date of conviction and some stay on your licence for 11 years, see this guide)
southpaw82
QUOTE (Logician @ Fri, 8 Jul 2011 - 14:09) *
some more serious offences count from date of conviction


Which offences are those?
Logician
QUOTE (southpaw82 @ Fri, 8 Jul 2011 - 20:38) *
QUOTE (Logician @ Fri, 8 Jul 2011 - 14:09) *
some more serious offences count from date of conviction


Which offences are those?

CD 40 to 90, DD 40 to 90 and DR 10 to 30 according to the directgov website. These are offences for which disqualification would normally be ordered, so it would rarely apply.
southpaw82
QUOTE (Logician @ Fri, 8 Jul 2011 - 20:48) *
QUOTE (southpaw82 @ Fri, 8 Jul 2011 - 20:38) *
QUOTE (Logician @ Fri, 8 Jul 2011 - 14:09) *
some more serious offences count from date of conviction


Which offences are those?

CD 40 to 90, DD 40 to 90 and DR 10 to 30 according to the directgov website.

So, for clarity, are you saying they stay on your licence for longer than others or (as you imply) they count for totting up purposes from the date of conviction rather than the date of offence?
Logician
As I read it, s29(2) RTOA 1988 means that for totting purposes it is always 3 years from date of offence, while s45 governs the time endorsements must stay on a licence, which for these particular offences is 4 or 11 years from date of conviction, rather than from date of offence as it is for other offences.
southpaw82
QUOTE (Logician @ Fri, 8 Jul 2011 - 21:24) *
As I read it, s29(2) RTOA 1988 means that for totting purposes it is always 3 years from date of offence


That's what I think too. I was confused by the (perhaps unintended) implication that some offences counted for totting from date of conviction.
Logician
I apologise for sloppy posting!
atdrocker
I did look at the directgov website. But missed where it said the SP30 is from date of offense.

The sp30 took so long to go to court, so I am relieved slightly that I am already quite a way in, and only have 10 months before the 5 points are discarded for totting up.

Because of that I think I am going to take the mobile phone FPN and drive like a Sunday driver everywhere.

I was reading this earlier today, which I found to be interesting.

http://www.pcworld.com/article/235266/do_h...ot_so_fast.html
Logician
QUOTE (atdrocker @ Fri, 8 Jul 2011 - 22:34) *
I was reading this earlier today, which I found to be interesting.

http://www.pcworld.com/article/235266/do_h...ot_so_fast.html

I think previous studies have shown something similar, the phone conversation itself may be very distracting and whereas if you are talking to a passenger in the car they will defer to your need to drive, with a phone conversation that cannot happen.
atdrocker
I tend to occupy passengers with a bit of good old fashioned map reading.
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