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

[lookinforinfo]

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

 

 

The Lothian Police would appear to differ 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.

[Aretnap]

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

No it isn't. It's the specific condition that treats a device as hand-held if it is, or must be, held during the course of performing any other interactive communication function.The legislation makes no reference to touching a device, other than holding it.

[Tony P]

While in a cradle the phone is not a 'hand held mobile telephone'. It is a mounted mobile telephone.

 

Take it out of the cradle and it becomes 'hand held', but not until then.

 

An interesting anomoly - a hand held 'walkie-talkie' is perfectly permissable to use, because it is not a telephone.

[assisted blonde]

As a comment PCSO's and PC's do make mistakes, my husband was stopped in similar circumstances for using a phone and when thhe report was sent to him the PCSO had observed him (note the word observed) driving a white car, the car was a works car and bright orange with writing all over it, called the rest of their observations into question !!

[lookinforinfo]

Well if just touching the mobile phone was a violation so surely should switching on a radio or dvd in a vehicle. Indeed, it would mean that police would have to travel in pairs since one on their own

would be unable to switch on their blues and twos.

[sgtbush]

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

 

that is the bit that means touching a button

[sgtbush]

Well if just touching the mobile phone was a violation so surely should switching on a radio or dvd in a vehicle. Indeed, it would mean that police would have to travel in pairs since one on their own

would be unable to switch on their blues and twos.

 

 

no, as a radio is not a two way communication device nor is a dvd, but if an officer thinks your not in full control of a car whilst doing such an action you can be prosocuted.

even eating a sandwich or lighting a cigarette can.

it would come under driving without due care and attention,careless or dangerous driving.

harsh i know, but true.

 

prime example, your reaching down into the passengers footwell to retrieve a bottle of water you want whilst driving you cant see the road properly and a copper spots you

Edited February 12, 2013 by sgtbush

[Migster]

that is the bit that means touching a button

Surely that part simply refers to some of the other functions of the phone, that are subsequently defined in section 6c?

[Kiki1]

Surely that part simply refers to some of the other functions of the phone, that are subsequently defined in section 6c?

 

True, but

 

©“interactive communication function” includes the following:

 

confirming the list covered under 6 c) is in addition to the basic function of a mobile telephone.

[sgtbush]

too tired to argue over the finer points of legislation, anyways the OP said that they want it to go to court, so let a judge decide, that is what they want.

however their are plenty of cases that this covers. i suggest searching on google

[crem]

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

 

not so sgtbush. As aretnap has stated, the offence is having to "hold" the mobile devise in your hand, not simply phyically touch it. So provide it is securely held in some type of holder, then you may press a button on it to make or answer a call and carry out that call "hands-free" without any offence being committed.

[crem]

(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;

 

that is the bit that means touching a button

you were extremely "selective in your highlighting of that section sgtbush to support your claim.

 

Please read the sub paragraph a) that you refer to in it's entirity..or more specifically the exact section you chose NOT to highlight; i.e. the bit that defines when a device is deemed to be hand-held.

 

(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;

[fletch70]

I was just going to say,people have been prosecuted for eating and drinking while driving. Not sure if it has ever been done for a cigarette although lighting one definitely takes your mind off the road.

[renegadeimp]

Int hose cases fletch, the officers observed the car swerving or not being driven in accordance with the highway code or law.

[fletch70]

From memory it was reported that it was done via speed camera in one case and because they thought she was on a mobile in another. No mention of car serving.

However of course not being in full control is against the law so i am not sure of your point.

 

metro.co.uk/2005/01/25/fined-for-eating-apple-at-the-wheel-592428/

 

http://news.bbc.co.uk/2/hi/uk_news/magazine/4788910.stm

[renegadeimp]

Those people did get prosecuted, but it looks like the police an judicial system simply didnt want to admit they were wrong.

 

That makeup woman, she needs to have her licence permanently revoked.

[fletch70]

Renegade with all due respect I am getting a little tired of people trying to discredit me when i give factual iinformation.

The info I supplied was fact,I demonstrated that fact but you seem to have an unfounded opinion that it was some sort of conspiracy.

[fletch70]

Sorry that wasn't aimed at you in particular just three times in as many days it has happened. It took intervention by the man himself yesterday to silence the two site team members that were giving potentially dangerous advice.

[renegadeimp]

Im not trying to discredit you at all. I was merely posting facts that are plain to see on the sites you linked. A forum is meant for discussion and exchange of opinion. No matter what kind of opinion that may be. it also gives everyone who posts here the right to counter the comments made in whatever way they see fit. If the comments made are wrong, and the person on either end needs to be corrected, then thats how it goes. I've been corrected many times myself, so dont take it personally.

[BRIGADIER2JCS]

It would be to the benefit of other Caggers if a discussion thread was used rather than sidetracking the OPs thread!

[fletch70]

Thanks and I won't. I can be a bit blunt myself was just feeling sensitive after the last couple of days.

[fletch70]

Simple fix brigadier,restore my pm facility and I would have sent a pm to discuss it.

[Aretnap]

Re eating apples, lighting cigarettes etc, the law simply says

 

Driver's control

104. No person shall drive or cause or permit any other person to drive, a motor vehicle on a road if he is in such a position that he cannot have proper control of the vehicle or have a full view of the road and traffic ahead.

It offers no precise definition of what constitutes being in a position to have proper control, and AFAIK there's no case law on the subject, and it remains a question for the magistrates to decide on the day. Even if there was case law, the High Court would at most offer a list of factors to consider when making that judgement. No higher court is going to hand down a list which says (for example) that eating a sandwich is not OK, scratching your nose is OK, adjusting the volume on the radio is OK provided you do it quickly and don't fiddle with it for too long etc. So anyone hoping to find such a list is going to be disappointed. Are you allowed to eat an apple while driving? Yes - but only if you remain in a position to have proper control of the vehicle. So don't do it unless you're confident that the magistrates will agree that you were

 

The fact that it's a relative grey area compared to hand-held mobile phone use (which is a blanket no) may go some way towards explaining why it's applied less frequently.

[lookinforinfo]

I think most of our comments are irrelevant. The driver is being charged with having the phone in his hand as I understand it. If he can get the Police to concede that they were mistaken, whether

he has to push a button to open or close the conversation doesn't matter. He is not guilty if he was using hands free equipment and using it in the correct manner when both seen and stopped by the Police.

They cannot change the charge to another one if they concede they were, or might have been mistaken.

 

Bear in mind that though it would appear to be a 50-50 chance, the OP has got certain things going for him.

1] it would have been easier and perhaps cheaper to swallow and pay the instant fine.The fact he hasn't paid indicates his innocence

2] it's not as if he has to worry about losing his licence-he has no points on it.

3] the comments by the Policeman were ill advised [ if I go to Court ,I get a day off but you lose a days pay]. Did the PC admit that on his statement?

[fletch70]

I agree that the OP has things going for him sadly though unless he can get the police to concede a mistake or possibility of a mistake he has problems. Taking it to court frankly means nothing in the guilt or innocence scenario although from a public viewpoint i see where you are coming from.

I believe the charge can be varied right up until the hearing starts, it certainly can be in criminal cases but wouldn't stake my life on it for motoring.

When i use to drive for a living i would often keep my headset pushed into my ear to get clearer sound so that could be an argument.

Frankly i think legal advice is needed.