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


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Hi,

 

On the 18th of January I was pulled over.

When the police officer asked what I was doing on my mobile phone (which was attached to the magnet holder).

 

I immediately replied I was 'changing the music'.

 

It was about half past midnight with no other cars on the road and I stopped my vehicle just before I entered a small roundabout as there was a car approaching from the right (which I now believe is the police car).

 

I took the opportunity to pick a song to accompany me the rest of the way home.

 

As I saw the police car approaching I pulled off and was pulled over.

 

The police have ticketed me.

 

I am a new driver so the punishment of 6 points and £200 fine would mean my licence will be revoked.

 

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

 

I am thinking of representing myself as cannot afford the legal fees.

 

I am aware of the technicality of the law surrounding this issue in order to be guilty of this offence -

 

Firstly said mobile/hand held device must be handheld at some point during alleged offence, secondly phone has to be used for interactive communication and thirdly engine has to be on.

 

Clearly my car engine was on,

I would definitely argue that my phone was not held in my hand

however the interactive communication part is a gray area as I stream music from Apple music but I also have music stored on my device,

the question is whether I was streaming music at around said time of offence.

 

I have requested a solicitor write to my phone company to release such information to me.

 

Other points to note there were 2 police officers in the vehicle.

 

The officer that ticketed me clearly believed that I was changing the music because she made comments at the end of our encounter saying that I can use Siri to change the music.

 

I have never been to court before and any advice is greatly appreciated.

 

My questions are:

 

Is it worth taking to court?

 

Will there be a opportunity to raise the points of law and how my incident does not meet the criteria for said offence and also can I request to see police statements of said incident?

 

Any other opinions and advice is greatly appreciated.

I need as much help as i can get.

 

...

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Is there any one that can give some advice at all?

 

You will have to exercise a little patience...members of the forum may respond when they are free and able to if having experienced same.

 

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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.

 

It worries me slightly that they've given you an eFPN. Because if you were to just pay the fine and take the points, then the DVLA would automatically revoke your licence (new driver rules) but this would all be done without you having had the benefit of a fair hearing as you'd be admitting the offence by paying up.

 

I would be electing to go to court and hope that you can convince the Magistrates that you reasonably felt that by pulling over at the side of the road you were taking the best course of action. You were stationary and the handbrake applied. Whilst this is technically still an offence, it's likely to be looked at more favourably.

 

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).

 

You might want to consider making sure that both police officers are in court so that you can ask them questions like "was I stationary when you saw me using my phone?"

 

If they answer "yes", then you've probably done enough.

 

It really is your only hope.

Please note that my posts are my opinion only and should not be taken as any kind of legal advice.
In fact, they're probably just waffling and can be quite safely and completely ignored as you wish.

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I would be electing to go to court and hope that you can convince the Magistrates that you reasonably felt that by pulling over at the side of the road you were taking the best course of action. .

 

I read RL180390's post "I stopped my vehicle just before I entered a small roundabout as there was a car approaching from the right" to mean that s/he had stopped in the carriageway at the entrance to the roundabout because a car was coming round the roundabout, not that s/he had pulled over to the side of the road. Can you clarify please RL180390?

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Hi,

 

That’s correct. I stopped at the roundabout because a car was approaching from the right.

Just to be more clear, this was a 40mph resedential Road.

It was raining, there was no cars around.

I thought it was the right thing to do to find the track whilst I was stationary rather than attempt to fiddle around when moving.

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I actually sent a letter to the justice department detailing the incident however I received a reply explaining that there is no alternative appeals procedure and that a FPN is whereby I can solve the matter without going to court and the only way to discharge the matter is to abide by the condition of the Fpn or go to court and be tried. Surely my phone records will be of help? Using a phone as a MP3 player surely is not an offence. I have not used the phone for communication purposes. It was literally a few seconds. As soon as I saw the police car coming I moved off.

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Sorry can I add to this, the car that was approaching from the right of the roundabout, turned left down the road I was on but travelling the other way and the police car approached from behind me. I believe that the car coming from the right of the roundabout is the police car because the officer declared she had enough time to turn round and come back. It was raining heavily and I only really had a quick glance at the vehicle that came from the right, as soon as I saw the indicator to turn left. I did not pay attention to it as I automatically thought that I was not an obstruction. Looks like this mistake has proved to be fatal.

Edited by RL180390
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It always puzzled me why you can change radio station on the car stereo while driving but you can't do the same thing on a mobile phone attached to your windscreen.

Wouldn't the "handheld" word help considering that the device was not held in the hand?

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It will definitely help however I don’t know the police version of events yet. They may well lie and say they did see the phone in my hand, then it become my words against theirs. Then I suppose I would have to challenge what they think they saw and cast reasonable doubt. My phone is attached to a magnet holder on the drivers side air vent. I suppose in my favour I can say they did not have a clear view from behind me as it was raining and they would have had to look through the head rests to see the phone actually in my hand. If the police say they saw the phone in my hand as they turned off the roundabout, I suppose I will have to challenge how much they saw considering the speed it took for them to turn and travel down the road. By no means was the vehicle travelling slow when it went pass me, as if it was I would have noticed that it was going slow. I’m not sure whether this will work but I need to think of answers to any scenario that they might come up with. I think in the future what I will do is put my phone in the glove box box. I have a Bluetooth system that I plug into the aux port of my stereo that I can skip songs with, the reason why I didn’t use that is because I was searching for a specific album to play, I didn’t even know you could command Siri to play specific albums, I didn’t really think about it but now after the officer has mentioned it. It will be the only way I search for a specific song when needed.

Edited by RL180390
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Its using a handheld device. It does not mean holding in your hand.

 

The law

•It's illegal to use a handheld mobile when driving. This includes using your phone to follow a map, read a text or check social media. This applies even if you’re stopped at traffic lights or queuing in traffic.

•It is also illegal to use a handheld phone or similar device when supervising a learner driver.

•You can only use a handheld phone if you are safely parked or need to call 999 or 112 in an emergency and it’s unsafe or impractical to stop.

•If you’re caught using a handheld phone while driving, you’ll get 6 penalty points on your licence and a fine of £200. Points on your licence will result in higher insurance costs.

•If you get just 6 points in the first two years after passing your test, you will lose your licence.

•Using hands free (e.g. for navigation) is not illegal. However, if this distracts you and affects your ability to drive safely, you can still be prosecuted by the police

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Hand-held / Hand-held mobile phone

Regulation 110 (6)(a) states that a mobile phone or 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.

 

The term "mobile phone" will cover cell-phones and smart phones.

 

Hand-held device

Regulation 110 (4) describes a hand-held device as any other device which performs an interactive communication function by transmitting and receiving data, other than a two way radio using specific frequencies. Regulation 110 (6)© provides a non-exhaustive list of "interactive communication functions" such as: sending or receiving oral or written messages, sending or receiving facsimile documents, sending or receiving still or moving images, and providing access to the internet. Communication with the internet is included - the interaction does not therefore have to with another person.

 

Use

There has been some debate about what use means.

 

A phone or device will be in use where it is making or receiving a call, or performing any other interactive communication function whether with another person or not.

 

The particular use to which the mobile phone must be put is not defined as an element of the offence. The prosecution must merely prove that the phone or the other device was hand held by the person at some point during its use at a time when the person was driving a vehicle on a road.

 

cps.gov.uk/ legal-guidance/ road-traffic-offences-mobile-phones

 

After seeking legal advice the solicitor has informed me to maintain the device was not held in my hand as that will be an avenue for a defence.

Jimmy Carr was in transit and holding the mobile in his hand and he still managed to get off. Fair enough he had the best motoring solicitor in the UK who exploited the interactive communication part of the offence, it’s a shame that magistrate court rulings do not set precedence.

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I'll just put the pointers down where you may fail.

 

 

You can only use a handheld phone if you are safely parked

 

 

Using hands free (e.g. for navigation) is not illegal. However, if this distracts you and affects your ability to drive safely, you can still be prosecuted by the police

 

This applies even if you’re stopped at traffic lights or queuing in traffic.

 

 

By all means take it to court but you will need an expensive solicitor I fear.

 

The word USING a handheld device does not necessarily mean your holding it.

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Can I answer a phone call with my finger whilst using a hands-free device?

Surrey Police has said that these penalties only apply whilst using a hand-held mobile device.

 

This means "the driver is permitted to use minimal contact to accept/decline calls or perform other simple functions, again, with minimal contact, in the way that you may turn the heating up or down".

 

w w w.getsurrey.co.uk/news/surrey-news/mobile-phone-use-driving-your-12679373.am

 

 

I don’t mean to rebut everything but I have to use everything possible to back my case.

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I understand this but for this offence to be complete the device must be held in the hand at some point of said alleged offence.

That is guidance set by the Crown Prosecution Service.

I’m sure the are functions of a mobile that you can use whilst driving as long as it does not distract you from the road.

I feel the punishment considering the circumstances is harsh.

I would have chose the song and got home safely without causing harm or danger to myself, others or the environment.

I think because people keep using their phones inappropriately, accidents and fatalities keep happening and previous sanctions were not enough of a deterrent. Whenever an officer sees anyone touch their phone whilst they are driving, they get ticketed straightaway as to enforce a zero tolerance policy. I understand the need for this but in my situation, I am very unlucky.

Basically what the law is saying is that I deserve my licence revoked, to be fined and to have to put up with higher insurance premiums for literally changing the track in my car. It just happened to be that the source of the music is my phone. In the early hours of the morning with (next to) no traffic around at all. I’m sure the ticketing officer could have use her discretion considering the circumstances of my case, I know she is not obliged to but if I had been scrolling through the radio stations, it would seem I would not be any trouble at all.

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Do you think I’m better off in taking the 6 points on the chin and dealing with the consequences.

 

Just as I thought the most appropriate time to do anything to do with my phone whilst driving is exactly the situation I was in, literally ghost town with no one on the road.

 

In any other condition, I would have not touched my phone at all.

It was something that maybe would have took my 5 seconds maximum and I would have been on my way.

 

I had no intention of using my phone for the purposes of making/receiving a call/message or accessing social media.

 

All I really did was 3 taps and one swipe to get what I wanted.

 

I guess my judgement of the situation was incorrect and shouldn’t be swiping the phone at any point unless if parked in a safe place with engine off :-(

 

I think if I followed your advice, the magistrates will definitely find me guilty.

The legislation states that it does not matter whether you were stationary.

Car has to be parked in a safe place and engine off.

 

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

 

however as an MP3 player, adding to this I think I must also show that I was not distracted from the road in the course of my actions.

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Using a phone as a MP3 player surely is not an offence. I have not used the phone for communication purposes. It was literally a few seconds. As soon as I saw the police car coming I moved off.

 

Not my area, but so far as I am aware, yes it is illegal so long as the engine is running, irrespective of whether you are stationary, and if you touch the phone in order to change the track - same as if you are using a satnav, or use your phone as a satnav. It is not illeagal to look at the device if it is in a holder (so long as it is not restricting visibility) and providing that you don't program the route or touch the screen whilst not safely parked with the engine switched off

 

I think that some of your comments regarding the nature of what you were doing as in 'It was only three clicks and a swipe...' would not do you any favours. It would seem from what you have said that you HAVE broken the law - the question is WHICH law?

 

This site might offer an avenue to explore https://www.richardsilver.co.uk/news/offence-use-smartphone-satnav-music-player-driving/

 

"Is it legal to use a hand-held smartphone as a satnav or to play music while driving? Unfortunately, the legislation provides no definitive answer and there is as yet no binding case law to provide drivers with additional guidance.

 

So is it an offence simply to touch a hand-held device while driving? What about using it as a satnav or to listen to music? Neither the Highway Code (rules 149 and 150), nor the Government website provide any further explanation for motorists. Even the Legal Guidance provided by the Crown Prosecution Service (CPS) for its own staff acknowledges that the meaning of use has been a subject of debate, yet provides no specific guidance in relation to these questions.

 

However, the CPS guidance does make clear that “In cases where there is doubt about the nature of the device, or dispute about whether it is being used” the prosecution may prefer an alternative offence of “driving in such a position that (the driver) cannot have proper control of the vehicle or have a full view of the road and traffic ahead”.

 

The CPS guidance is very important for two reasons. Firstly, because conviction for the alternative offence carries only three points, as opposed to six for the specific mobile phone offence. Secondly, it hints that in cases involving use of hand-held smartphones as for example satnavs or music players the Prosecution may well accept a guilty plea to the alternative offence which carries fewer points"

 

Continue to take proper legal guidance with this. You will not be able to argue that the police were wrong, nor is your ignorance of the precise terms of the law any defence. You can expect the police to be very clear about what they 'saw'

Any advice given is done so on the assumption that recipients will also take professional advice where appropriate.

 

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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.

 

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The solicitors that I have spoken to have advised that I use the wording of law to my advantage. It is exactly what happened in the Jimmy Carr case.

Something that took seconds to do literally has turned my life upside down.

 

I am absolutely positive I would have managed to get home safely without causing any problems.

 

It’s true I took my eyes of the road for a few seconds whilst I was stationary but I had to stop anyway to give way to the car coming from the right.

 

I used that opportunity to quickly do what I was doing and thought it was the correct thing to do because I had stopped and not cars or anything was around at all.

 

The officer stated to me that I was ‘unaware of my surroundings’ and ‘was there for some time as she had enough time to turn the car around’ obviously I would say this is an opinion based on her judgement.

 

There was another officer in the car.

He didn’t really say much,

my impression of him is that he didn’t really want to ticket or wouldn’t have ticketed me for the alleged offence.

However they could have just been acting out the ‘good cop, bad cop’ routine.

 

The police are right,

I was using my phone but not for the purposes of interactive communication or enough to distract me from driving safely considering the circumstances.

 

 

I mean if the road was full of traffic, I agree I would hold my hands up. Not that this has any bearing in the court of law at all. :-(

 

Can the prosecution change the offence in court if they wanted to?

For example to driving without due care and attention?

 

I have learned so much about this offence and the ins and outs of the legislation since receiving the FPN as literally this incident consumes me.

 

 

It’s the first thing I think about when I wake up and the last thing I think about when I go to sleep. I guess I should have been more clued up before, at the age of 27.

 

If I knew everything I knew now about this offence.

I would have definitely put my phone in the glove box every time I enter the car to drive as to save myself from any hassle.

 

I have also seen this in the first few days after I was pulled over.

That is why I haven’t acted upon the FPN yet.

 

https://www.pattersonlaw.co.uk/faqs/using-iphone-mp3-player/

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The word USING a handheld device does not necessarily mean your holding it.

 

So, by that logic, my 55" LED TV is "handheld"! :lol:

 

For the offence to be complete the device must be held in the hand, this is also in the legislation but you seem to have missed that part when you quoted it.

 

http://www.legislation.gov.uk/uksi/2003/2695/regulation/2/made Paragraph 6(a)

Please note that my posts are my opinion only and should not be taken as any kind of legal advice.
In fact, they're probably just waffling and can be quite safely and completely ignored as you wish.

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