Challenging Hand held mobile offence...not guilty. **Acquitted**

[CAAD]

Last August my husband was stopped by police for what he thought was a routine check.

 

He was in his work van and pulled over to the police.

 

He came over and said...do you know what you have been pulled over for today?

 

My husband said..routine check?

No he said..for using your mobile whilst driving!!

 

Now my husband had the phone in a holder stuck on to the dash board with the phone in it and was talking to someone via his Bluetooth device on his stereo.

The other person was still on the phone and the officer could hear him thru the stereo. Yet he still wanted to fine my husband..

the officer said .."you might as well pay the fine now".

 

He said that he didn't have the phone in his hand once etc and refused to pay the fine.

He was driving with his elbow resting on the window n his hand to his head/ear whilst driving with his left hand.

This must of looked like he had the phone to his head but he didn't and when he got to the officer he had put his hand back on the steering wheel

and the phone was clear to see on the dashboard in front.

 

In dec we got a letter from the ticketing office offering our "final offer" to pay the fine before it goes to court. Once again we refused.

 

So yesterday the Summons arrived, with 2 witness statements and we are fuming.

One was from the PCSO who was acting as a spotter, who "seen" Dave driving with a mobile phone in his right hand.

She then contacted the Pc who was further up the road waiting to stop dave.

 

The pcs statement says that once he stopped dave, that dave picked up the mobile from his lap and said 'ill ring you back' .

Dave did say that but thru the Bluetooth device...he didn't have the phone on his lap.. The pc lied on his statement!!!

 

He also said that he asked dave to demonstrate how the hands free device works and apparently twice it didn't work.

.after the third time it worked and the pc suggested it was faulty and that's why he had the phone to his ear.... All this was utter rubbish.

The pc hadn't put in his statement how dave " might as well just pay the fine!!!"""

 

It ends by saying that the pc reminded dave that he was under caution and asked if he would like to reply... And dave said 'SEE YOU IN COURT".

 

This is all so different to what actually happened. I'm just frightened to carrying on fighting this as its like 2 police people saying one thing and Dave telling the actual truth...who are the courts going to listen to more. Pure bullies!

 

Has anyone been through something similar or what do you think?

 

Thanks

[BRIGADIER2JCS]

Looks like 50=50 chance he will have to convince the magistrates that a PCSO and PC are telling lies, perhaps a solicitor locally may be able to help.

[lookinforinfo]

It might be easier if your OH goes for the police being mistaken rather than lying. As confirmation of their mistake cite the fact that the phone was still ongoing when talking to the policeman initially.

Had he had the phone in his hand he would surely have cut it off BEFORE stopping. Also had he been talking on the phone he would not have been so innocent when asked by the police why he

thought he had been stopped. And of course his phone was in the holder when stopped.

[sgtbush]

The actual use of bluetooth isn't illegal, but what is illegal is if you have to touch your phone to take or receive a call, dial a number etc etc. If you can do all that without touching your phone then you wont be breaking the law.

 

i can understand how this has come about, hand on ear with a bluetooth device in ear could, from a distance be mistaken for a phone.

i would take it to court and demonstrate what went on

[CAAD]

Thanks for reading and replying..I know it's abit long winded. Yes we will say the PC must've been mistaken... He's come across in his statement as tho dave was cocky..if you was to read that,that is how you think dave was. He wasn't, he was totally frustrated that he was saying he didn't have the phone in his hand and the PC said that he was! He kept saying.. Listen you just might as well pay the fine! Are they targeting to get so many fines or something?

[CAAD]

'Targeted' I should've put. Sorry.

[CAAD]

The actual use of bluetooth isn't illegal, but what is illegal is if you have to touch your phone to take or receive a call, dial a number etc etc. If you can do all that without touching your phone then you wont be breaking the law.

 

i can understand how this has come about, hand on ear with a bluetooth device in ear could, from a distance be mistaken for a phone.

i would take it to court and demonstrate what went on

 

He was talking via the stereo and the speakers. He didn't have a ear device thingy. I'm worried that they'll now say how he should've had both hands on steering wheel then or just something else to get him done for. Like all different things that I never knew you could get in trouble for.

[sgtbush]

then he will of had to touch the phone to answer a call, make call, disconnect from call, so yes technically he is guilty,

for the facts of the case of the police lying etc is a different matter and above my scope

[CAAD]

Daves phone is on automatic answer so when it's connected to the stereo thru Bluetooth and someone rings it automatically answers after 2 seconds and then dave speaks. So he doesn't touch his phone.

[CAAD]

then he will of had to touch the phone to answer a call, make call, disconnect from call, so yes technically he is guilty,

for the facts of the case of the police lying etc is a different matter and above my scope

 

 

Daves phone is on automatic answer so when it's connected to the stereo thru Bluetooth and someone rings it automatically answers after 2 seconds and then dave speaks. So he doesn't touch his phone.

[CAAD]

The pc said... "You might as well pay the fine and take the points. I get paid for a day off and attending court when you will lose a days pay and I get paid no matter what." Dave said " I'm not taking any points, I've got no points and I will just take this to court then'

[Aretnap]

The actual use of bluetooth isn't illegal, but what is illegal is if you have to touch your phone to take or receive a call, dial a number etc etc. If you can do all that without touching your phone then you wont be breaking the law.

It's holding the phone in the hand which makes it illegal - not touching it.

 

110 Mobile Telephones

(1) No person shall drive a motor vehicle on a road if he is using–

(a) a hand-held mobile telephone...

(6) For the purposes of this regulation–

(a) a mobile telephone or other device is to be treated as hand-held if it is, or must be, held at some point during the course of making or receiving a call or performing any other interactive communication function...

The OP says the phone was in a holder stuck on the dsahboard; if so it would have been legal to touch it to make/receive a call. Or at least, it wouldn't have been a mobile phone offence to do so, you could argue that it would have been driving while not in a position to have proper control, but that's a different offence.

 

(Off topic rant: The law is ridiculous anyway as there's a lot of evidence which suggests that using a hands free phone is no safer than using a handheld one. The real danger doesn't come from the fact that you have one hand off the wheel, it's the distraction caused by the intellectual effort needed to have a conversation with someone who isn't there.)

[sgtbush]

nope, you need to re read the legislation, if you touch it your technically guilty

touching a hand held mobile device is using it, if you press a button

[renegadeimp]

So by that logic, eating, smoking, touching the radio, car heaters etc could all be considered a violation?

[BRIGADIER2JCS]

Eating certainly has been seen as not bieing in proper control of a vehicle so has drinking from a cup or botte.

[renegadeimp]

But none of them are an offence or illegal.

[BRIGADIER2JCS]

But none of them are an offence or illegal.

 

Not being in proper control of a vehicle is though.

[renegadeimp]

I agree, but again, if they consider touching a button on the phone " not being in proper control of a vehicle", then the same applies to the above.

[Aretnap]

nope, you need to re read the legislation, if you touch it your technically guilty

touching a hand held mobile device is using it, if you press a button

But it's not hand-held. It's holder-held. If the mere fact that it could be hand-held was sufficient then it would be illegal to use whether or not you touched it.

[Aretnap]

I agree, but again, if they consider touching a button on the phone " not being in proper control of a vehicle", then the same applies to the above.

Eating at the wheel has certainly been treated as not being in proper control. http://www.telegraph.co.uk/news/newstopics/howaboutthat/4247086/Motorist-fined-and-given-penalty-points-for-eating-bread-at-wheel.html

[renegadeimp]

Thats one incident. What about the hundreds of thousands of other motorists. Police included.

[Aretnap]

What about them? Loads of people commit offences without being caught, including some policemen.

 

Whether or not someone is in a position to have proper control is ultimately a question of fact for the magistrates to decide. Personally I'd argue that proper control should be interpreted in terms of what the driver was doing at the time. If I was sitting at traffic lights and took my hand off the wheel to fiddle with the stereo, pick my nose or have a crafty bite of a sandwich I'd be arguing that I had all the control necessary in the circumstances. If I dud any of those things while I was negotiating Z bends at 60mph I don't think I'd have a leg to stand on. Whether a court would agree with that argument I don't know - I know of no case law on the subject.

[renegadeimp]

Well, it is kinda obvious when people drive past the police, or even get stopped for other things or a routine stop and they have a drink in their cup holder, or a bluetooth headset on.

 

I'm not arguing with you, it's just that if a person can get points and a fine for pushing a button on their phone while it is in a holder, then it stands to reason the same should apply to car stereos and the like. It's the same thing.

[lookinforinfo]

nope, you need to re read the legislation, if you touch it your technically guilty

touching a hand held mobile device is using it, if you press a button

 

Sgt Bush, I have read the legislation and can see no mention of merely touching the phone as being unlawful. Having to hold it yes but nothing more.

 

 

http://www.legislation.gov.uk/uksi/2003/2695/regulation/2/made

 

Amendment of the Road Vehicles (Construction and Use) Regulations 19862. The Road Vehicles (Construction and Use) Regulations 1986(1) are amended by inserting after regulation 109—

“Mobile telephones110.—(1) No person shall drive a motor vehicle on a road if he is using—

(a)a hand-held mobile telephone; or

(b)a hand-held device of a kind specified in paragraph (4).

(2) No person shall cause or permit any other person to drive a motor vehicle on a road while that other person is using—

(a)a hand-held mobile telephone; or

(b)a hand-held device of a kind specified in paragraph (4).

(3) No person shall supervise a holder of a provisional licence if the person supervising is using—

(a)a hand-held mobile telephone; or

(b)a hand-held device of a kind specified in paragraph (4),

at a time when the provisional licence holder is driving a motor vehicle on a road.

(4) A device referred to in paragraphs (1)(b), (2)(b) and (3)(b) is a device, other than a two-way radio, which performs an interactive communication function by transmitting and receiving data.

(5) A person does not contravene a provision of this regulation if, at the time of the alleged contravention—

(a)he is using the telephone or other device to call the police, fire, ambulance or other emergency service on 112 or 999;

(b)he is acting in response to a genuine emergency; and

©it is unsafe or impracticable for him to cease driving in order to make the call (or, in the case of an alleged contravention of paragraph (3)(b), for the provisional licence holder to cease driving while the call was being made).

(6) For the purposes of this regulation—

(a)a mobile telephone or other device is to be treated as hand-held if it is, or must be, held at some point during the course of making or receiving a call or performing any other interactive communication function;

No mention there of touching the phone to switch it on or off for example

(b)a person supervises the holder of a provisional licence if he does so pursuant to a condition imposed on that licence holder prescribed under section 97(3)(a) of the Road Traffic Act 1988 (grant of provisional licence);

©“interactive communication function” includes the following:

(i)sending or receiving oral or written messages;

(ii)sending or receiving facsimile documents;

(iii)sending or receiving still or moving images; and

(iv)providing access to the internet;

(d)“two-way radio” means any wireless telegraphy apparatus which is designed or adapted—

(i)for the purpose of transmitting and receiving spoken messages; and

(ii)to operate on any frequency other than 880 MHz to 915 MHz, 925 MHz to 960 MHz, 1710 MHz to 1785 MHz, 1805 MHz to 1880 MHz, 1900 MHz to 1980 MHz or 2110 MHz to 2170 MHz; and

(e)“wireless telegraphy” has the same meaning as in section 19(1) of the Wireless Telegraphy Act 1949(2).”

 

Indeed if you look at the Lothian Police advice on mobile phones in cars they say this-Can I use hands-free equipment while driving?

 

Provided that a phone can be operated without holding it, then hands-free equipment is not prohibited.

 

Pushing buttons on a phone while it is in a cradle or on the steering wheel or handlebars of a motorbike for example, is not covered by mobile phone legislation, provided you don't hold the phone.

 

http://www.lbp.police.uk/information/frequently_asked_questions/mobile_phones.aspx

[Kiki1]

Sgt Bush, I have read the legislation and can see no mention of merely touching the phone as being unlawful. Having to hold it yes but nothing more.

 

 

(6) For the purposes of this regulation—

(a)a mobile telephone or other device is to be treated as hand-held if it is, or must be, held at some point during the course of making or receiving a call or performing any other interactive communication function;

 

The specific condition that makes touching the unit whilst moving a violation.