Nicked on phone
Discussion
Red Devil said:
I'm afraid you're going going to have to put up with the fact that you're not going to get a definitive answer because it is for a court to interpret the meaning of legislation (a link to which was posted before you got involved in this thread) .
The OP would have nothing to lose by calling Emma or Paula, or using the free 'ask a question' service. One thing I'm fairly confident of is that, if the circumstances described by the OP are true, any decent specialist motoring solicitor could very probably succeed in getting a potential prosecution dropped before it ever got in front of the bench.
If the OP does get a DAC offer it might be a sensible move to accept it. The only other thing to be aware of is if he is insured with a company which wants to know about SACs/DACs (e.g. those in the Admiral Group). An SAC for an SP30 may not make much difference to future premiums but a DAC for a CU80 might well do.
FWIW, my mobile phone screen is set to display the time in nice large numbers. It would be no more distracting to pick it up and bring it briefly into my peripheral vision than flicking up my shirt cuff would be in order to look at my wristwatch. In fact probably less so, especially at night.
As it happens, I dislike hands free and don't need or want the distraction. When I'm driving the mobile stays in the (locked) glovebox and I never 'use' it in any way. If it rings or a message beep comes through and I want to deal with it before reaching my destination, I will pull off the road, switch off, and swap the keys and the phone before doing so. Any other way at the wrong place and time could result in a tug.
The mobile phone legislation amendment was put on the statute book well over a decade ago and its wording simply hasn't kept pace with the forward march of technology. It is also woolly enough for any driver to be at the subjective prejudices of a mistaken police officer. In such cases a professional will have a much better chance of dealing with the apparatus of the state than most lone individuals.
The legislation uses the word "use" deliberately to allow it to cover all subsequent developments in phone technology and to cover all possible uses of such technology without being "woolly". The term is very specific as it says quite specifically "use".The OP would have nothing to lose by calling Emma or Paula, or using the free 'ask a question' service. One thing I'm fairly confident of is that, if the circumstances described by the OP are true, any decent specialist motoring solicitor could very probably succeed in getting a potential prosecution dropped before it ever got in front of the bench.
If the OP does get a DAC offer it might be a sensible move to accept it. The only other thing to be aware of is if he is insured with a company which wants to know about SACs/DACs (e.g. those in the Admiral Group). An SAC for an SP30 may not make much difference to future premiums but a DAC for a CU80 might well do.
FWIW, my mobile phone screen is set to display the time in nice large numbers. It would be no more distracting to pick it up and bring it briefly into my peripheral vision than flicking up my shirt cuff would be in order to look at my wristwatch. In fact probably less so, especially at night.
As it happens, I dislike hands free and don't need or want the distraction. When I'm driving the mobile stays in the (locked) glovebox and I never 'use' it in any way. If it rings or a message beep comes through and I want to deal with it before reaching my destination, I will pull off the road, switch off, and swap the keys and the phone before doing so. Any other way at the wrong place and time could result in a tug.
The mobile phone legislation amendment was put on the statute book well over a decade ago and its wording simply hasn't kept pace with the forward march of technology. It is also woolly enough for any driver to be at the subjective prejudices of a mistaken police officer. In such cases a professional will have a much better chance of dealing with the apparatus of the state than most lone individuals.
Unless you are either very thick or charged with an offence or are representing someone charged with an offence, the term "use" is specific and very simple for anyone to interpret without any possible ambiguity.
The law is usually, where it can be, written to prevent frequent amendments, this one meets that very well, hence no amendments to the definition of the offence.
GC8 said:
But they were wrong...
My point wasn't whether they were right or wrong, (further on in my post I actually pointed this out) but that this was the advice given, which the OP didn't seem to like.But anyway,
https://www.gov.uk/using-mobile-phones-when-drivin...
"It’s illegal to ride a motorcycle or drive using hand-held phones or similar devices."
OP was "using a hand-held phone" to tell the time, hence the stop.
t, but that isn't the same thing.3 points for s. 41D(b) or 3 points for s. 41D(a). Take your pick.
If the offence is properly charged then the prosecutor doesn't have to prove using. If the prosecutor charges the (arguably) wrong offence then they should charge the correct offence once the defence is made clear. This can even be done 'out of time'.
Your best hope would be getting a weak prosecutor / clerk / bench combo - which does occasionally happen, but don't bank on that and exercise extreme caution when dealing with unscrupulous solicitors.
If the offence is properly charged then the prosecutor doesn't have to prove using. If the prosecutor charges the (arguably) wrong offence then they should charge the correct offence once the defence is made clear. This can even be done 'out of time'.
Your best hope would be getting a weak prosecutor / clerk / bench combo - which does occasionally happen, but don't bank on that and exercise extreme caution when dealing with unscrupulous solicitors.
George111 said:
p1esk said:
George111 said:
hosedoctor said:
As the OP on this I have to say that I'm not that surprised at all the negative replies on this,but I was only asking for a bit of advice,why do all the self righteous dick heads have to pile in with their clever comments,so no one has ever done anything wrong in a car! Why do people assume I'm lying when I say I was checking the time,to clarify I was in a 2015 Porsche and yes it does have a clock,yes it has Bluetooth! I was looking at my phone for the time to see how my watch was keeping time! It's no big deal really is it girls,but oh no some of you have to sit in your mum and dads spare room with your graphic novels spouting crap! This site used to be good but I'm afraid that as soon as anyone puts something on here that they don't like/agree with they start.
Listen chap, if I act like a weapons grade prat I don't come on PH and shout about it, because, guess what, I'd be told I'm a weapons grade prat !You've been stupid enough to ask a really stupid question and you've been called out for it. What you did was stupid - I and others don't believe your story and your latest statement about your watch sounds even less believable.
Suck it up, learn from it, use Bluetooth and a phone holder, or like many people, put your phone away when driving and focus on the important job you're supposed to be doing.
Driving isn't given the importance it should be given by many people these days. None of us are perfect, we can all make mistakes so you need to minimise the opportunity for mistakes by paying attention and looking where you're going. Not difficult is it ?
When we're driving it is important to remember that it is the driving that is our most important task, and we should not allow ourselves to be distracted by engaging in other activities that are far less important.
Having said that, it is my view that the task of driving does not require 100% concentration all the time, though some people do make that assertion, but with all due respect I disagree with them, and I think you may find that the real experts do too.
During the course of a drive the work load can vary widely, and therefore the amount of concentration and activity required by the driver must also vary. Therefore, when the task of driving is making very high demands on us, these are not the times to be looking at the speedometer, altering the heater settings, changing a radio channel, changing a CD, and certainly not using a mobile phone of any kind. These ancillary tasks should be confined to the times when the driving task is very easy, in which case an experienced and competent driver ought then to be able to cope with them without safety being compromised.
tapereel said:
Unless you are either very thick
A right charmer aren't you? Why do you feel the need to be gratuitously offensive?tapereel said:
or charged with an offence
No. It's 99.99% unlikely ever to happen as far as the use of a mobile phone is concerned.tapereel said:
or are representing someone charged with an offence,
Again no. Besides, I don't have the necessary qualifications for rights of audience in court so it would be a waste of my time and, more importantly, theirs.tapereel said:
the term "use" is specific and very simple for anyone to interpret without any possible ambiguity.
See below.tapereel said:
The law is usually, where it can be, written to prevent frequent amendments, this one meets that very well, hence no amendments to the definition of the offence.
Fair enough as a general point, but what I was getting at is that 'use' has to be read in conjunction with the specific wording in those particular regs. agtlaw said:
3 points for s. 41D(b) or 3 points for s. 41D(a). Take your pick.
If the offence is properly charged then the prosecutor doesn't have to prove using. If the prosecutor charges the (arguably) wrong offence then
they should charge the correct offence once the defence is made clear. This can even be done 'out of time'.
Your best hope would be getting a weak prosecutor / clerk / bench combo - which does occasionally happen, but don't bank on that and exercise extreme caution when dealing with unscrupulous solicitors.
Looking at the time display on my mobile is clearly not making or receiving a call or text. AFAICS both RTA and C&U refer to 'an interactive communication function by transmitting and receiving data'. AFAIK a mobile phone time function does not depend on this. It works in a similar fashion to the CMOS in a PC/laptop otherwise the clock would go belly up every time the phone was out of range of any base station. That would make the clock function totally pants. Of course I may be way off base and no doubt someone with expert knowledge in this field will be able to point out what I have overlooked.If the offence is properly charged then the prosecutor doesn't have to prove using. If the prosecutor charges the (arguably) wrong offence then
they should charge the correct offence once the defence is made clear. This can even be done 'out of time'.
Your best hope would be getting a weak prosecutor / clerk / bench combo - which does occasionally happen, but don't bank on that and exercise extreme caution when dealing with unscrupulous solicitors.
As someone else said, it's bizarre that a person taking a peek at their battery powered wristwatch while driving is committing no offence but doing the same with the screen on their mobile for an identical purpose might turn out to be doing the exact opposite.
Probably my fault but the point appears to have been missed. They can prosecute for 'not in proper control.' No requirement to prove 'using.' They don't even have to prove it was a phone / interactive device. From memory, C&U regs 104, not 110 (for a phone).
Edited by agtlaw on Monday 29th August 17:05
p1esk said:
During the course of a drive the work load can vary widely, and therefore the amount of concentration and activity required by the driver must also vary. Therefore, when the task of driving is making very high demands on us, these are not the times to be ...
changing a CD
I had a client prosecuted for doing just that. Case dropped on the day of trial. changing a CD
Red Devil said:
tapereel said:
Unless you are either very thick
A right charmer aren't you? Why do you feel the need to be gratuitously offensive?tapereel said:
or charged with an offence
No. It's 99.99% unlikely ever to happen as far as the use of a mobile phone is concerned.tapereel said:
or are representing someone charged with an offence,
Again no. Besides, I don't have the necessary qualifications for rights of audience in court so it would be a waste of my time and, more importantly, theirs.tapereel said:
the term "use" is specific and very simple for anyone to interpret without any possible ambiguity.
See below.tapereel said:
The law is usually, where it can be, written to prevent frequent amendments, this one meets that very well, hence no amendments to the definition of the offence.
Fair enough as a general point, but what I was getting at is that 'use' has to be read in conjunction with the specific wording in those particular regs. agtlaw said:
3 points for s. 41D(b) or 3 points for s. 41D(a). Take your pick.
If the offence is properly charged then the prosecutor doesn't have to prove using. If the prosecutor charges the (arguably) wrong offence then
they should charge the correct offence once the defence is made clear. This can even be done 'out of time'.
Your best hope would be getting a weak prosecutor / clerk / bench combo - which does occasionally happen, but don't bank on that and exercise extreme caution when dealing with unscrupulous solicitors.
Looking at the time display on my mobile is clearly not making or receiving a call or text. AFAICS both RTA and C&U refer to 'an interactive communication function by transmitting and receiving data'. AFAIK a mobile phone time function does not depend on this. It works in a similar fashion to the CMOS in a PC/laptop otherwise the clock would go belly up every time the phone was out of range of any base station. That would make the clock function totally pants. Of course I may be way off base and no doubt someone with expert knowledge in this field will be able to point out what I have overlooked.If the offence is properly charged then the prosecutor doesn't have to prove using. If the prosecutor charges the (arguably) wrong offence then
they should charge the correct offence once the defence is made clear. This can even be done 'out of time'.
Your best hope would be getting a weak prosecutor / clerk / bench combo - which does occasionally happen, but don't bank on that and exercise extreme caution when dealing with unscrupulous solicitors.
As someone else said, it's bizarre that a person taking a peek at their battery powered wristwatch while driving is committing no offence but doing the same with the screen on their mobile for an identical purpose might turn out to be doing the exact opposite.
The same regulations describe what you must not use and that description is of a mobile telephone.
What the regulations do not sat is you must not use a mobile telephone to make an interactive communication.
It is quite simple, even those who find logic difficult will be able to see the meaning...if only they read it before commenting.
I thought that you can do 2 courses as long as they are not for the same reason. As this is for driver awareness I assume, where as the other was for speeding?
I lifted up my phone and clicked bluetooth as a copper was passing me a year or so ago. He pulled me over and gave me a course rather than points as he watched me do it all & knew I wasnt talking on the phone its self.
I lifted up my phone and clicked bluetooth as a copper was passing me a year or so ago. He pulled me over and gave me a course rather than points as he watched me do it all & knew I wasnt talking on the phone its self.
agtlaw said:
Probably my fault but the point appears to have been missed. They can prosecute for 'not in proper control.' No requirement to prove 'using.' They don't even have to prove it was a phone / interactive device. From memory, C&U regs 104, not 110 (for a phone).
Au contraire, I did get that. 
agtlaw said:
p1esk said:
During the course of a drive the work load can vary widely, and therefore the amount of concentration and activity required by the driver must also vary. Therefore, when the task of driving is making very high demands on us, these are not the times to be ...
changing a CD
I had a client prosecuted for doing just that. Case dropped on the day of trial. changing a CD
tapereel said:
The C&U regs describe the offence as "...must not use..."
The same regulations describe what you must not use and that description is of a mobile telephone.
What the regulations do not sat is you must not use a mobile telephone to make an interactive communication.
It is quite simple, even those who find logic difficult will be able to see the meaning...if only they read it before commenting.
I'm a tad unclear what you mean by this double negative. If you are contending that the 'interactive communication function' aspect is irrelevant, then what is the purpose of C&U Regs Section 110(6)(a)?The same regulations describe what you must not use and that description is of a mobile telephone.
What the regulations do not sat is you must not use a mobile telephone to make an interactive communication.
It is quite simple, even those who find logic difficult will be able to see the meaning...if only they read it before commenting.
If it is germane, then my point about whether the time display is not such takes centre stage. The not in proper control aspect of the RTA 1988 Section 41D(a) and/or Section 104 mentioned by agtlaw is a different charge and would need to be dealt with accordingly by the defendant's solicitor.
I have no dog in this fight, nor will I be ever likely to, but I'm genuinely interested in finding out how the land lies here.
Red Devil said:
I'm a tad unclear what you mean by this double negative. If you are contending that the 'interactive communication function' aspect is irrelevant, then what is the purpose of C&U Regs Section 110(6)(a)?
Not necessarily irrelevant, just not defined.S110 says you must not use a mobile phone.
It defines a mobile phone as a handheld device which can perform interactive communications.
It doesn't say whether or not "using" only deals with the communications function, or if it covers all possible uses of the device.
Hence the arguments. There are very similar devices, without the communications function, which can be used in almost identical ways, but are not illegal to use because of the way the law is written. Then there are other communications devices which are explicitly legal to use. It's not clear if communication is the problem, or distraction by a complex device.
There's an implication, possible even an intent, which has yet (AFAIK) to be resolved in the higher courts - and until that happens, everything is just opinion.
agtlaw said:
p1esk said:
During the course of a drive the work load can vary widely, and therefore the amount of concentration and activity required by the driver must also vary. Therefore, when the task of driving is making very high demands on us, these are not the times to be ...
changing a CD
I had a client prosecuted for doing just that. Case dropped on the day of trial. changing a CD
Happily I have (so far) no personal experience of such proceedings.
Police officer/s saw D driving whilst messing about with a CD and CD case. Apart from aforementioned, no bad driving alleged. Charged as a 'not in control' offence contrary to s. 41D(a) and Regulation 104 C&U Regs. Pleaded NG. Case adjourned to trial. Written reps to CPS. Nothing heard back despite chasing. Day of trial - prosecutor tells me he hasn't heard of this offence and wants to look at it. Goes away for a bit and comes back to tell me he's binning it. D has his costs awarded from central funds.
Red Devil said:
agtlaw said:
Probably my fault but the point appears to have been missed. They can prosecute for 'not in proper control.' No requirement to prove 'using.' They don't even have to prove it was a phone / interactive device. From memory, C&U regs 104, not 110 (for a phone).
Au contraire, I did get that. agtlaw said:
p1esk said:
During the course of a drive the work load can vary widely, and therefore the amount of concentration and activity required by the driver must also vary. Therefore, when the task of driving is making very high demands on us, these are not the times to be ...
changing a CD
I had a client prosecuted for doing just that. Case dropped on the day of trial. changing a CD
tapereel said:
The C&U regs describe the offence as "...must not use..."
The same regulations describe what you must not use and that description is of a mobile telephone.
What the regulations do not sat is you must not use a mobile telephone to make an interactive communication.
It is quite simple, even those who find logic difficult will be able to see the meaning...if only they read it before commenting.
I'm a tad unclear what you mean by this double negative. If you are contending that the 'interactive communication function' aspect is irrelevant, then what is the purpose of C&U Regs Section 110(6)(a)?The same regulations describe what you must not use and that description is of a mobile telephone.
What the regulations do not sat is you must not use a mobile telephone to make an interactive communication.
It is quite simple, even those who find logic difficult will be able to see the meaning...if only they read it before commenting.
If it is germane, then my point about whether the time display is not such takes centre stage. The not in proper control aspect of the RTA 1988 Section 41D(a) and/or Section 104 mentioned by agtlaw is a different charge and would need to be dealt with accordingly by the defendant's solicitor.
I have no dog in this fight, nor will I be ever likely to, but I'm genuinely interested in finding out how the land lies here.
The regulations do not say the offence is "a driver must not use a mobile telephone to make a call, text or other interactive communication.
The regulation says "a driver must not use a mobile telephone while driving."
Simple.
The regulations then describe, in 6(a) what a mobile telephone is.
Most importantly perhaps for you is, a mobile telephone doesn't stop being a mobile telephone when it is a clock, navigation system, music player, alarm, video camera or anything else it can perform. It is always a mobile telephone, as such YOU CANT USE IT WHILE DRIVING.
This is the beauty of the way the regulation is written, it covers every use of a mobile telephone, every mobile telephone no matter how smart or dumb.
If the officer deciding on what to charge is in doubt about the phone use then not in proper control is available as mentioned above.
Edited by tapereel on Monday 29th August 19:56
marshalla said:
Not necessarily irrelevant, just not defined.
S110 says you must not use a mobile phone.
It defines a mobile phone as a handheld device which can perform interactive communications.
It doesn't say whether or not "using" only deals with the communications function, or if it covers all possible uses of the device.
Hence the arguments. There are very similar devices, without the communications function, which can be used in almost identical ways, but are not illegal to use because of the way the law is written. Then there are other communications devices which are explicitly legal to use. It's not clear if communication is the problem, or distraction by a complex device.
There's an implication, possible even an intent, which has yet (AFAIK) to be resolved in the higher courts - and until that happens, everything is just opinion.
It is unlikely a high court will hear that argument as the law is very simple to apply and is unambiguous.S110 says you must not use a mobile phone.
It defines a mobile phone as a handheld device which can perform interactive communications.
It doesn't say whether or not "using" only deals with the communications function, or if it covers all possible uses of the device.
Hence the arguments. There are very similar devices, without the communications function, which can be used in almost identical ways, but are not illegal to use because of the way the law is written. Then there are other communications devices which are explicitly legal to use. It's not clear if communication is the problem, or distraction by a complex device.
There's an implication, possible even an intent, which has yet (AFAIK) to be resolved in the higher courts - and until that happens, everything is just opinion.
I see the vociferous anti-mobile phone mob are in the house...
...amusing really.
Mobile phone ownership has increased dramatically over the last 10 years.
What are the stats over that period for collisions?
There are already laws to punish poor and dangerous driving. Not sure why there is a need to punish driving that isn't poor or dangerous because someone is using a phone or checking the time.
What next? Laws against changing radio station? Eating a chocolate bar?
...amusing really.
Mobile phone ownership has increased dramatically over the last 10 years.
What are the stats over that period for collisions?
There are already laws to punish poor and dangerous driving. Not sure why there is a need to punish driving that isn't poor or dangerous because someone is using a phone or checking the time.
What next? Laws against changing radio station? Eating a chocolate bar?
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