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Driver whips out phone in pulled over car, gets another ticket. Were police in the wrong?

Published June 12, 2012
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Q: I was pulled over for doing a rolling stop at a stop sign. I was headed to a meeting so when I got pulled over, I whipped out my phone to text my contact that I was going to be late. The officer then issued me another ticket for using my cellphone in a vehicle — even though I was pulled over and the vehicle was not moving.

His rationale was that the car was “technically still in operation because the engine was on.” In other words, in his view, I needed to shut off my engine before I could use my phone.

I then asked him if I was in my own driveway and the engine was on, while I was warming it up, would I still be violating the law if I used my cellphone at that time. His answer was an emphatic “yes” if I was in the driver’s seat of the vehicle.

I challenged both tickets in court. The officer did not show up, so the tickets were tossed.

However, the question remains of whether I would have been able to successfully challenge the cellphone ticket under these circumstances.

Q: My buddy was on his motorcycle and pulled out his cellphone to check the time while stopped for a red light. He was then ticketed by police for using a cellphone while driving.

What are his chances in court?

A: Stephen Parker, a licensed paralegal with Pointts (www.pointts.com), a traffic-ticket defence firm, replies:

Section 78.1(6) HTA provides exceptions to not using cellphones etc. in a motor vehicle.

“Subsections (1) and (2) (The use of hand held communication or entertainment devices), do not apply if all of the following conditions are met:

1. The motor vehicle is off the roadway or is lawfully parked on the roadway.

2. The motor vehicle is not in motion.

3. The motor vehicle is not impeding traffic.”

The bottom line here is that the officer was wrong in stating the engine has to be off.

As far as being in the reader’s driveway is concerned, he’s fine as the vehicle is “off the roadway” so it falls under the exception.

The officer was wrong on that count as well.

Where motorists have come unstuck is when they are stopped at a red light and use a cellphone. They are considered to be operating the vehicle and will be convicted, subject to proof that the device was in fact a communication or entertainment device. This is a different argument entirely and one that has been upheld in the appeal courts.

That’s where an experienced Traffic Ticket Specialist can argue for you.

Eric Lai adds:

For the record, it doesn’t matter if you make it into a parking lot or private driveway before being stopped by police. If a chargeable offence occurred entirely, or in part, on a public roadway, you can be ticketed under the HTA.

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