Author Topic: Using Phone whilst not driving! - Please Help  (Read 2172 times)

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Using Phone whilst not driving! - Please Help
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I’m hoping someone can help. This morning at around 7:30am (13th Nov), I was stationary in traffic on the M25 near Cobham with my engine off. I used the time to connect my phone to my car via Bluetooth. The police, who were nearby, pulled me over and issued a ticket for using my phone while driving—even though I wasn’t driving. The officer mentioned there are 12 unmarked police cars looking for drivers using phones. I explained I was stationary with the engine off (it automatically stops at a standstill), but the officer said I couldn’t prove it. Apparently, they were using a rolling roadblock for this operation. Does anyone with legal expertise have any advice please? Thank you in advance.[/b]

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Re: Using Phone whilst not driving! - Please Help
« Reply #1 on: »
I know the following link is only government advice and not legislation but if your case went to court, the magistrate may well consider it when making a ruling:

https://www.gov.uk/using-mobile-phones-when-driving-the-law


"It’s illegal to hold and use a phone, sat nav, tablet, or any device that can send or receive data, while driving or riding a motorcycle.

This means you must not use a device in your hand for any reason, whether online or offline.

For example, you must not text, make calls, take photos or videos, or browse the web.

The law still applies to you if you’re:

stopped at traffic lights
queuing in traffic
supervising a learner driver
driving a car that turns off the engine when you stop moving"
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Re: Using Phone whilst not driving! - Please Help
« Reply #2 on: »
I believe you will struggle to convince a court that you were not "driving" at the time.

Re: Using Phone whilst not driving! - Please Help
« Reply #3 on: »
There are essentially 3 elements to the offence of using a hand-held device while driving - using, holding and driving.
If you were holding it at the material time, that element appears to have been satisfied.

To the extent that we can ascribe a coherent and logical gestalt mind to Parliament, I personally would find it hard to accept that they intended that somebody manipulating a phone whilst entirely stationary in a queue of traffic should receive a mandatory 6 point endorsement. If you had been controlling the speed and direction of a moving motor vehicle at the time, then it seems certain that that would have been Parliament's intention.
As far as we are aware, there is no case law specifically on the issue of what constitutes "driving" for the purposes of the mobile phone legislation. For drink driving, being stopped at traffic lights still constitutes driving, which is entirely consistent with the purpose of the legislation - apart from the potential for very poor judgment, a drunk driver would not be able to stop being drunk instantly when the lights changed.

Whilst the meaning of "using" has widened substantially since the High Court decided that the original iteration was very narrow, ([Without looking at the revised wording]I would also be minded to argue that connecting the phone to the car's bluetooth is not in and of itself actually "using" the phone - it is merely preparatory, rather than a being useful in and of itself. For the purpose of TV licensing, "using" a TV does not include merely having one available for use - it means actually using, whereas for insurance, using a motor vehicle on a road or other public place includes having it parked up (on the somewhat circular basis that if not, people would get away with using a vehicle without insurance).

In the alternative, if manipulating the phone to connect to the car's bluetooth is a "use" in and of itself - ironically a "use" that would solely negate the risk of using the phone for interactive communication whilst subsequently controlling the speed and direction of the vehicle after the traffic had started moving, then doing so is potentially protected by the qualified right to give and receive ideas and information under Art. 10 ECHR - which can only be negated by law that is necessary to protect the rights and safety of others. Whilst connecting to bluetooth in case you need to call your wife to tell her that you're going to be late for dinner is not the most compelling of "freedom of speech" cases, any infringement of that right by public authority would need to be justified as necessary and proportionate. Basically, "the law is the law" and other such trite tautologies won't cut it.

Your options are to accept the fixed penalty, or reject/ignore the fixed penalty and wait for them to take you to court.
If you accept the fixed penalty, or lose in court, you get the same 6 points, but a much heavier fine + costs + surcharge if you lose in court.
If you manage to win in court (either at first instance, or on appeal if you have the appetite for it), then you get no points and no fine.
I am responsible for the accuracy of the information I post, not your ability to comprehend it.
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Re: Using Phone whilst not driving! - Please Help
« Reply #4 on: »
Very kind of you to take the time to do this. Thank you

Re: Using Phone whilst not driving! - Please Help
« Reply #5 on: »
Do you have any points currently? If you were already on 6 points it might be worth trying your luck with a sympathetic magistrate. (Risk vs reward ratio).

Were you actually holding the phone or was it resting somewhere or in a cradle?


Re: Using Phone whilst not driving! - Please Help
« Reply #6 on: »
Thank you for replying. It was in my lap

Re: Using Phone whilst not driving! - Please Help
« Reply #7 on: »
Do you have any points currently? If you were already on 6 points it might be worth trying your luck with a sympathetic magistrate. (Risk vs reward ratio).

The task is harder than you suggest. He'd need at least two mags to agree with him.

Re: Using Phone whilst not driving! - Please Help
« Reply #8 on: »
Quote
Unfortunately, the law has expanded its use of a mobile phone when in control of a motor vehicle. Regardless if your in a vehicle, which is at a standstill with automatic cut out you are still in control of the vehicle.

Whilst the law was changed (in 2022) to expand the definition of "using" a mobile phone (to encompass just about any and every activity) the restriction concerning "driving" has remained at just that - it is illegal to drive whilst using a mobile phone. The law makes no mention of being "in control".

I don't know of any case law where the definition of "driving" was clarified and without that it becomes entirely a matter for individual courts to determine each case on its merits.
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