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dsdonnes
Hi,

Looking for some of your thoughts regarding this example please. A fixed penalty was issued for using a mobile phone\device whilst driving (not sure of the official offence name) however the fact of the matter was that the car was stopped at traffic lights with the handbrake on, the phone was ringing and only handled to put it on silent as the ringing was very distracting, which in my opinion was the safest thing to do. Phone records show that no calls or texts were made, and if consensus is that it would help, I will get records to show no calls were received at this time.

The police said it didn't matter and simply issued the notice. What do you guys think? Had the car been moving I understand it could be argued the driver was not in full control or the driver was driving without due care and attention, but not when the handbrake was on.

Any suggestions or thoughts on whether this should be challenged or not would be appreciated?

Thanks
dsdonnes
mrh3369
I'm afraid that in handling it you used it so the penalty is valid although a tad harsh. IMHO of course.
CuriousOrange
The offence in the legislation boils down to 'using whilst driving'. There are interminable arguments about what constitutes each (note that what has been considered 'driving' for the purposes of one offence hasn't always been considered the same for another). There's been no definitive law to say that having the handbrake on at traffic lights still constitutes driving for the purposes of the relevant regulation, although when it was introduced the government were quite keen on saying that it did. Nor has it been established that holding = using, no comebacks. If the court believe that all you did was pick it up, put it on silent and place it down again whilst stationary with the handbrake on you may be lucky in that they decide the prosecution is a bit over-zealous and so decide that you weren't using. On the other hand they may be of the opinion that it still counts as using and driving and so convict, or the police statements cast doubt that that is all you were doing.

It boils down to how much you're up for the try, combined with how likely you think the police statements will support what you've said. Your chances are less than evens, in honesty.
mynamegoesinhere
Mobile phone use whilst driving is dangerous, so I do think it's right that this is legislated against.

But the legislation itself seems to be a confused mess.
It really needs to be rewritten so that it's completely clear:
-what types of device are covered
-what circumstances are considered "driving" for the purposes of the legislations, and
-what exactly "using" the device means.

dsdonnes
Thanks for your replies, appreciated.
Logician
I am afraid that you have virtually no chance of an acquittal if it goes to court and it may cost you much more, so my view would be to simply accept the fixed penalty.
southpaw82
QUOTE (Logician @ Fri, 4 Oct 2013 - 15:24) *
I am afraid that you have virtually no chance of an acquittal if it goes to court and it may cost you much more, so my view would be to simply accept the fixed penalty.


I'm not so convinced. I suspect he may be convicted but an argument for a discharge could be made. It's a gamble that only the OP knows whether they have the appetite for.
4x4x4
I agree that the law is harsh and badly thought out and if it's about safety and vehicle control it's also discriminatory.

e.g. when at a standstill is there really any difference between picking up a phone to put it on silent or lighting a cigarette, you won't get nicked for the latter !

Have to say though that your argument that it ringing was distracting enough to warrant silencing is a bit thin and might not cut too much slack in front of a court, they might well conclude that if it is something which you would find so disturbing then you should have simply switched it off or at least put it on silent before setting off.
David_R
QUOTE (4x4x4 @ Fri, 4 Oct 2013 - 19:51) *
e.g. when at a standstill is there really any difference between picking up a phone to put it on silent or lighting a cigarette, you won't get nicked for the latter !

Or picking up a cassette to place it in the stereo.

Does beg the question... how much did you (OP) have to do to put the phone on silent? If it was a case of having to hold it in one hand and manipulate it with the other, that's quite a level of "not paying attention" when you are in control of a vehicle. If, however, (as is the case with many smartphones, samsung in particular) all you had to do was turn the phone over (with one hand), that could be achieved without drawing your attention from the control of the vehicle.
cjard
frustrating, that reaching out and tapping the "silence" button when it's on the passenger seat is 3 points, tapping the same button when it's in a cradle stuck to the windscreen is just fine..

maybe pick up a cradle next time youre passing your local accessory store also, to prevent future recurrences of such allegations*

QUOTE (David_R @ Sat, 5 Oct 2013 - 21:14) *
QUOTE (4x4x4 @ Fri, 4 Oct 2013 - 19:51) *
e.g. when at a standstill is there really any difference between picking up a phone to put it on silent or lighting a cigarette

Or picking up a cassette to place it in the stereo.



Yes and no.. I'm given to understand that mobile phone use was once prosecuted under the same legislation as all manner of other distractive acts, eating, changing music, slapping the kids in the back.. Likely its prevalence and accident-creation potential/realisation led to the creation of targeted legislation making it a more absolute offence, rather than something more in line with a reasonable-man test. You can still be done for lighting a cigarette, changing music, reading a map etc if its reasonable to assert that it caused a loss of attention, so it's not "fine" per se but it's harder to prove minor transgressions

*..noting of course that a cradled phone is still capable of causing a distraction and leading to prosecution under alternative legislation
The Rookie
QUOTE (cjard @ Wed, 9 Oct 2013 - 14:01) *
frustrating, that reaching out and tapping the "silence" button when it's on the passenger seat is 3 points, tapping the same button when it's in a cradle stuck to the windscreen is just fine..

Poor example, tapping it while it's 'held' by the passenger seat is not holding it, so no offence.
fedup2
Wasn't there a case recently where the Op got a not guilty for looking at the time on their phone?

I think I would go the same route with silencing my phone.
Roverboy
Or the famous Jimmy Carr acquittal as he was not using it as a phone but as a recording device for a joke he had just thought of.
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