Endorsable conditional offer for 'using a handheld mobile device when driving' - using phone and changing songs

[DragonFly1967]

Personally, I think you stand a good chance of at least getting the charge changed if not dropped completely.

 

Bearing in mind that we only have your side of the story, from your description of the events... At no point was the device held in your hand, therefore the offence is not and cannot be complete.

[DragonFly1967]

the only 'device' you are allowed to 'interact with'

is a hand held microphone that might be related to say a ham radio or a cb radio.

 

dx

 

It's for a separate debate dx, but I'm afraid that you're wrong on so many levels with this statement.

 

For the purposes of this legislation (which is The Road Vehicles (Construction and Use) (Amendment) (No. 4) Regulations 2003) "interacting" with any device is not an offence. For this offence to be complete the device must be an interactive communications device (ie it must send & receive voice or data), the device must be held in the hand and the device must not be on the list of exemptions (ie a two way radio).

 

So things like a sat-nav, car radio, dictaphone etc cannot be an offence to use under this legislation. Although other options are available if your use of any item (including my examples and two-way radios) affects your ability to drive, by way of a charge of "not in proper control" for example.

[Surfer01]

Reading this thread makes me wonder if you are liable for prosecution if your phoenerings and you take it out of your pocket for the passenger to answer the call?

[DragonFly1967]

Reading this thread makes me wonder if you are liable for prosecution if your phoenerings and you take it out of your pocket for the passenger to answer the call?

 

In the strictest interpretation of the law then yes, you would be guilty of an offence. Just as you would be if you took your phone out of your pocket to look at the time. However, in most cases, common sense also plays a part.

 

Although strictly still an offence, I feel that someone who is complying with the spirit of the legislation, ie stopped at the side of the road (I don't mean a motorway) to make or receive a call 'handheld', whether or not the engine is running, should not be given a ticket. It's those drivers that are disregarding the law completely that should be targeted and penalised even more heavily than the current legislation allows.

[dx100uk]

irrelevant and unnecessary posts removed

 

dx

siteteam

[Man in the middle]

Bit late in as I’ve been away.

 

Unless things have changed in the last couple of years. They shouldn't have offered you

 

a conditional fixed penalty as the offence could result in the loss of your licence (in your case (new driver)). So the matter should be heard in court.

 

Not correct. Reaching six points does not result in disqualification for a New Driver. His licence is revoked administratively by the DVLA, not judicially by the court, and he can drive with a new provisional licence immediately he has it. A fixed penalty offer can be offered in the circumstances as a court has no discretion over the revocation.

 

You're going to have a hell of a job convincing them that you're not guilty of anything at all, but if you plant a seed of doubt you might get fewer points (they do have the option).

 

No they don’t. The offence carries a statutory minimum of six points. In any case, a seed of reasonable doubt would mean an acquittal, not a less harsh penalty.

 

The only way out of this is to prove that the phone was not held in my hand and that it was not used for an interactive communication as defined by the law

 

You don’t have to prove anything. The prosecution has to prove their case. If you decline the fixed penalty and go to court you can see the evidence against you before entering your plea. You can then decide whether the evidence will hold up to scrutiny in court or not. Beware that if you are convicted in court (whether by a guilty plea or following a trial) it will cost you more than £200 (but no more than six points).

[RL180390]

Hi,

 

Just a quick update guys 3 or so months from the alleged offence date. I have received a summons.

Will again update once it is all over.

[RL180390]

Further update. Hearing on the 12th of October (9 months after alleged offence) to decide when actual hearing will be.

Will update further when I can.

[Man in the middle]

Further update. Hearing on the 12th of October (9 months after alleged offence) to decide when actual hearing will be.

 

Beware, it will be for more than that. You will be asked to enter your plea. If you plead Not Guilty you will be asked to state the basis of that plea (that is, what you dispute about the prosecution's case). If you fail to engage with that process you cannot "ambush" the prosecution at your trial. You cannot introduce a defence which they did not know about. So you need to be prepared to disclose the nature of your defence. If you want any of the prosecution's witnesses to attend court (instead of accepting their statements and so that you can cross-examine them) you must say so. After all this has been done a date will be set for your trial.

[RL180390]

Sorry I should have clarified.

 

Firstly they sent me a Single Justice Notice Procedure which asked for my plea and stated I would get 33% off the fine if I pleaded guilty at this stage, which comes across to me as some sort of bribe.

 

I’ve sent a Not guilty plea online and submitted a reason under guidance of my solicitor. In reply to this I have received a letter titled Summons on Referral to Court.

 

Reason is for a case management hearing, actually after reviewing the document. I think that might be the actual court hearing but I thought I read somewhere it was hearing to decide actual court date, must have imagined it.

Edited August 19, 2018 by RL180390

[RL180390]

I have a defence and I have made my solicitor what that is.

I have told the truth all the way along and have nothing to hide, I am ready to face what needs be done.

I am speaking with my solicitor tomorrow which I can ask some very important questions. I am surprised in my situation that it has got this far as the police have next to no evidence that I was using my phone as set out by the wording of the law however seeing as the case has to be approved by the CPS, they must feel a prosecution can be secured.

 

I will query tomorrow what the solicitor thinks the police will base their case on and how the barrister will combat that alongside a number of other significant questions.

 

I am slightly nervous as have never been to court before but as time goes on I am less nervous as it is in the solictor’s/barrister’s hands now.

[Man in the middle]

Yes, what you describe is completely normal and what I described is a "Case Management" hearing. Single Justices cannot deal with Not Guilty pleas and your matter has been transferred to the normal Magistrates' Court. The hearing will not be your trial. You have to have the opportunity to notify the court whether you "agree" the prosecution's evidence (the statements) or if you want the statement maker to attend court to give their evidence in person. If you want them to attend and they fail to do so their evidence cannot be admitted.

 

The discount for a guilty plea is not a bribe. It is enshrined in law and applies to all criminal offences from speeding to murder. They were simply explaining it to you.

 

Will your lawyer be representing you at your trial?

[Hammy1962]

Edited August 19, 2018 by Hammy1962
Change of mind!!

[king12345]

If you plead not guilty there's also a chance of a cock up and the pc who stopped you doesn't attend.

An acquaintance of mine got his case dismissed because of this.

Mind you, it was a few years ago and for a bylaw offence of riding a bicycle on a pavement made of gravel.

[Man in the middle]

If you plead not guilty there's also a chance of a cock up and the pc who stopped you doesn't attend.

 

I wouldn't rely on that as a strategy if I were you. As you have a solicitor I take it you know the potential costs of being convicted following a trial compared to those for a guilty plea.

[RL180390]

Thank you for explaining this. It is much more clear in my head what needs to happen, I will be asking the officer to attend especially as she told me the punishment could be a fine or points or a mobile phone safety course or nothing.

My solicitor will be representing me, I contacted them in February right at the start and have paid a fixed fee.

It seems to me the only evidence that the police have is the word of the officer as my phone records will work in my favour, I maintain no interactive communication was made and at no point did I hold my phone and also it was a matter of seconds, there was no harm or danger to myself or anyone else. Safe to say since this incident, I have been very very careful with my phone and touching it at all when I am driving.

[RL180390]

Not sure what the smiley face is for but I’ll take it. Any positivity is welcome and needed

[RL180390]

I am aware, also my colleagues have said the police are bound by duty to attend court and have to provide a very good reason as to why they will not be attending if they don’t attend. I don’t know how true this is but one of them is a Special Constable so if anything they would be well informed.

 

So there are a limited number of outcomes:

 

A) I am found guilty and face the consequences of getting my licence revoked and 6 points on top of fine up to £1000, will have to take both theory and practical to get my licence back and also have a raised insurance premium for having a driving conviction on my record. ( This outcome seems very very harsh considering the circumstances of my case but it is a possibility and I accept that).

 

B) There is not enough evidence for the police to secure a conviction and case is dropped.

 

C) Hearing goes ahead and magistrates finds me not guilty.

[Man in the middle]

No need for me to get bogged down with your chances of acquittal as I'm sure your solicitor has it all in hand. But...

 

...and at no point did I hold my phone

 

But then:

 

....and also it was a matter of seconds,

 

So what was only a matter of seconds if you were not holding it? (These are questions you may be asked in court when you give your evidence).

 

...there was no harm or danger to myself or anyone else.

I'm sure your solicitor has told you that element is not necessary to make out the offence.

[RL180390]

Matter of seconds where I was stopped to change the music on my phone.

 

I know whether there was no harm or danger to myself has no bearing on the outcome as on another day, it may have .

 

My point being in this case, they could try and say I was driving without due care or attention.. I’m not sure what evidence they have to prove that though.

 

To be honest I have not queried what defence my solicitor will be offering as for months and months I had heard nothing from the police or the CPS.

 

It is something I will chat about with him tomorrow.

[king12345]

I wouldn't rely on that as a strategy if I were you. As you have a solicitor I take it you know the potential costs of being convicted following a trial compared to those for a guilty plea.

 

Not a strategy of course, but as the op is weighting the pros and cons of all options, that goes in the "maybe a pro"

[BazzaS]

My point being in this case, they could try and say I was driving without due care or attention.

 

That isn’t what you have been summonsed for, though, is it?

 

To be honest I have not queried what defence my solicitor will be offering

 

I’d hope the defence is based on what you've told them.

With less than 8 weeks to go : sounds like you need a forthright conversation with them on what defence they'll be presenting on your behalf and their prediction for its chances of success ........

There’s a world of difference between “we think it almost certain you’ll be acquitted, based on .......” and “hey, we are going with ‘not guilty’ because those are your instructions, against our advice”!

[Man in the middle]

A) I am found guilty and face the consequences of getting my licence revoked and 6 points on top of fine up to £1000, will have to take both theory and practical to get my licence back and also have a raised insurance premium for having a driving conviction on my record.

 

You will not be fined £1,000 or anything like it. You will face a fine of one and a half week’s net income (with a minimum assumption of £120pw). You will also pay a surcharge of 10% of the fine (Minimum £30). What you have omitted and what will hurt most are prosecution costs. These will be on a standard scale (unless the prosecution has to call expert witnesses – unlikely in your case) and will probably be around £600.

 

B) There is not enough evidence for the police to secure a conviction and case is dropped.

 

The decision to prosecute you has already been taken and that decision includes examining whether there is sufficient evidence to support a conviction.

 

As well as this, I’ve now taken the opportunity to look through your thread fully. The first thing that stands out is this:

 

I am thinking of letting the issue be decided by the courts as I feel that the punishment is harsh considering the circumstances.

 

Your thinking is flawed. You may feel the punishment is harsh but that does not affect whether you are guilty or not. Simply believing the punishment is harsh will not see you acquitted.

 

As well as that you seem to be making frequent mentions of the influence using the device had on safety. As I said before, it is not an issue with this offence. The police have to prove three things:

 

1. That the device meets the definition of a “hand held mobile device.” There doesn’t seem much doubt about this though the use to which you were putting it at the time may play on the Magistrates' minds when they decide upon (3) below.

 

2. That you were “driving”. There’s no doubt about that. You were stationary at a roundabout waiting for the road to be clear so that you could proceed.

 

3. That you were “using” the device. Although “using” is not defined in the legislation nor, as far as I am aware, by case law, on your own admission you used it to change your music. For this reason phone logs and the like (if you could get them which is doubtful for incoming calls) will not help you.

 

So what will happen in court? The officer (Is it just the one?) will give evidence that you were seen using the device (and that’s all that’s needed to make out the offence if the court believes that evidence). You can then either decline to give evidence (in which case you will be convicted as near as to certainty as there can be) or you can give evidence and face cross examination by the prosecutor. You will no doubt be asked in some detail precisely what you were doing with the device whilst you were driving so be prepared for that. The issue for the court is simply do they find whether or not you were "using" the device. They will do this based on the evidence they hear and any legal submissions from either the prosecutor or your solicitor.

 

I wish you well. I hope I’m wrong but I have a sneaky feeling you may be in for an expensive day out.

[welshdean]

Seems you could be right MiM ...

[RL180390]

The trial was yesterday. The Prosecution changed the charge last minute to ‘careless driving’ which I have pleaded guilty. They claim they were ‘persuaded’ to do this by my solicitor so outcome is 3 points. £85 prosecution costs and £225 court costs however the solicitor has secured a bag nicely.

 

The problem as to whether I was guilty or not of using a handheld mobile device whilst driving was dependent on whether my phone was connected to the internet at the time as to fill out the interactive communication part of the law, I am unsure at the time whether it was connected to the internet.

 

I queried the handheld element with my solicitor, his interpretation was that if the phone was touched it would count as being held?

 

Solicitor advised me to plead guilty to the lesser charge as the risk was too high with what the mobile phone charge was dependent on as one would assume that to play music off the phone it has to be connected to the internet... it could have went either way but the risk was too high.

 

I’m ok with the result, I can’t say I was completely in the right, the money is recoverable and I get to keep my licence.

Taken a full year to find a resolution, I’m just glad it’s all over...