Using phone whilst driving - even though I wasn't!

[Hair Bear]

I was travelling in extremely slow stop-start traffic and noticed the police directing the occasional vehicle to an avenue on the left which was teeming with cops. I surmised they were doing some sort of random check as only the odd vehicle was directed that way, and I was unlucky enough to be one of them.

Once down the street I was directed by a different officer to pull over, wind down my window and turn off my engine. I was then flabbergasted to hear him say (words to the effect of) "We are doing a mobile phone sting and you've been seen using yours."

 

I told him this just wasn't so and asked him to look at what I assumed would be video footage. "We don't have footage." I pointed out that my phone wasn't even switched on, but this didn't deter him from taking my details, and a photograph, and said I would be sent notification of prosecution, which has just come through - six points and £200 fine or else a £90 3-hour driving course.

 

The latter is tempting because I'm told there is no way anyone wins in court, but then I would be lying and saying I was using my phone when I absolutely wasn't.

All thoughts are welcome.

[BankFodder]

If you didn't do it then it seems a great shame to put your hands up to it simply to get a lesser sentence.

Surely the first thing to start doing is to to begin assembling all your mobile phone records and in particular you will be able to take screenshots of your telephone use from your telephone.

 

Others will come along with further ideas for putting a file together but don't forget that if it goes to court then the police will have to prove their case beyond reasonable doubt and if you have evidence of your phone activity then when it would be difficult to overcome that unless they have direct evidence

 

 

Also you should put together a detailed statement immediately describing exactly what happened and who said want to who.

 

You should do this now while the matters of fresh in your mind and make sure it is timed and dated.

 

Produce the statement and post it up here so that we can have a look and help you adjust the format

 

 

[unclebulgaria67]

They had Police officers watching drivers hundreds of meters before you were stopped. They would have made a report straightaway saying driver in vehicle A123BCD a Blue Ford Focus using mobile phone. This was then picked up by the officers controlling the stops.

 

Do you have a phone log showing it was switched off for a relevant period before the stop ?

 

Were you fiddling with any other objects or devices other than a phone that could have been mistaken as a phone?

 

Agree with Bankfodder, don't admit to something you did not do.

[Man in the middle]

Is this by any chance the same random check that this chap encountered:

http://www.nationalconsumerservice.co.uk/index.php?showtopic=141898

If so, you can follow the same advice.

[Hair Bear]

"same random check" Yes, but extra input is always good

 

"Do you have a phone log showing it was switched off for a relevant period before the stop?" I'm unsure how to check for that.

 

"Were you fiddling with any other objects or devices other than a phone that could have been mistaken as a phone?" Only thing I can think of is a minute or two before being pulled over I checked whether the note in my pocket was a fiver or a tenner. But like I say, this was some time before. 

 

"Produce the statement and post it up here so that we can have a look and help you adjust the format" Will do but it will be later as I have to go to hospital for a while. Thanks everyone.

[Ethel Street]

@Hair Bearextensive advice has been given to you on that site which mostly looks pretty sound to me, I couldn't add anything more.

 

One key thing being suggested there and here is getting shots of the battery usage logs from your phone but you've said on both sites that you can't work out how to do that on your phone.

 

If you can post up  the precise make and model of your phone someone might be familiar with it and be able to give you detailed instructions on how to find the information.

[Hair Bear]

The phone I own is an Alcatel 3.

 

"Produce the statement and post it up here so that we can have a look and help you adjust the format"

I've done this so far, okay?

Quote

 

My name is XXX

I am XX years old and only that XXX address.

I have held a driving licence for XXX years – does it have points on it?

On 26^th October 2021, I was transporting my 4-week-old baby daughter to Royal Manchester Children’s hospital along the same route I had been using almost every day for a month.

 

My baby daughter has the genetic disorder cystic fibrosis, which caused a life-threatening blockage at birth, and so she had to have an ostomy operation – which leaves an open wound and she wears a stoma bag.

 

My baby daughter needs round the clock car and e. She had only recently come home, and I was taking her for a check-up.

 

At approximately 8:45am I was on Regent Road and there was a tailback and stop-start slow-moving traffic, which I could see in the distance was caused by police officers pulling over the odd vehicle.

 

At the time I thought it was some kind of goods vehicle check, so was surprised when I got motioned at by an officer standing to my right, in the centre of the road, who waved me towards a side road on the left.

 

I even pointed to my chest and mouthed “me?” I was so surprised, and was nodded at.

 

I turned onto the said road, to find about thirty policemen, most of which were stood in a couple of groups having a chat and a laugh.

 

An officer not with the group of chatterers motioned me to pull to the lefthand side, and attempted to open my passenger door. I wound down the window and pointed to my daughter (in a ‘I don’t want to open the door because I have a baby there’ gesture).

 

It crossed my mind that somehow some cop somewhere was psychic, and they just wanted to grill wanted to ask me about why she wasn’t in a car seat (which was because she was so tiny and the stoma bag so cumbersome, that it made more sense to wedge her carrycot into the well).

 

He never mentioned the baby and just told me to turn off my engine, which I did, and in the next breath told me that they were conducting an operation regarding people using their phones whilst driving, and that I had been spotted using mine.

 

I was flabbergasted, and told him that my phone wasn’t even switched on and quickly added: “Look at your cctv footage! If you look at that you’ll see I wasn’t using my phone!”

He told me they hadn’t used any cctv footage.

 

He didn’t check my phone for usage, but simply asked I had my licence on me. I told him I didn’t (I rarely carry anything, including my phone) so he asked my name and address and took a photograph of me.

 

He also asked if I was working and how many points I had on my licence, which I found odd because what’s any of that got to do with the phone allegation?

 

A former policeman later told me that if I had said I had nine points, he would possibly have let me off with a warning. Instead he told me I would be getting a notification through the post.

 

I wanted to stay and put my case more stringently, like asking him to check my phone, but didn’t because my daughter was getting cold.

 

I am well aware that driving while using a telephone is dangerous as well as unlawful and in particular, as I had my very ill baby in the car, I would never have done anything to create a greater risk for her.

I have printed out the record of my incoming calls and outgoing calls and text messages for the period around the time that I was stopped and you will see that there was no telephone activity at all.

I should point out that in order to use my telephone I need to wear reading glasses that I am unable to use the same glasses in order to drive. 

As I was driving, I was not wearing any glasses and was therefore unable to use my telephone in any event.

 

 

[*at this point I would like to offer more arguments…

Like the fact that my daughter's safety was paramount to me at the time, so why would I jeopardise that by looking at a boring phone?

 

Like the fact that anyone who knows me will tell you how hard it is to get hold of me because I don’t like phones, never have, and rarely carry it.

 

I was only doing so in case I needed to ring the mother of my daughter from hospital. Hence why it was off, as the battery was low - my phone’s battery was nearly dead because it’s a naff charger and I’m always forgetting where I leave my phone, and so keep failing to charge it anyway.

 

Like the fact that I can produce my incoming and outgoing phone calls and texts.

 

Like the fact that I need to use reading glasses to see my phone

– did the police officer see me with glasses on (answer: no)?

 

Can’t have done because

(a) I wasn’t looking at my phone! And

(b) I can’t drive with my reading glasses on!

 

There’s also this other thing that someone elsewhere has mentioned, about the judgement in Barreto vs DPP]

[Man in the middle]

This is all fine and dandy. But bear in mind the police have to prove your guilt, you do not have to prove your innocence. I don't really know what you intend to do with your statement.

 

Everything you mention in it will only be considered if the matter goes to court. The likelihood is that you will be offered either a course or a fixed penalty.

 

To accept either of those you have to accept the allegation as it stands. The alternative is to decline those offers and plead Not Guilty in court. (There is no point in going to court and pleading guilty - it will simply cost you more cash).

 

You will have to make up your mind whether you are going to challenge this by the time the course or fixed penalty offers expire (which is 28 days after you receive it).

 

If you are going to challenge the allegation you will receive the evidence the police intend to rely on to convict you. if you are charged with a mobile phone offence the police will have to prove what purpose the phone was used for (as per the case of "Barreto").

 

You will have to make up you mind what to do.   

 

 

Edited January 7, 2022 by dx100uk
added A few blank lines only..dx

[Hair Bear]

I have already been offered to accept the allegation (I wrote this in my opening post: "[the copper] said I would be sent notification of prosecution, which has just come through - six points and £200 fine or else a £90 3-hour driving course. The latter is tempting because I'm told there is no way anyone wins in court, but then I would be lying and saying I was using my phone when I absolutely wasn't")

 

"I don't really know what you intend to do with your statement" - I was following BankFodder's advice, who said: "you should put together a detailed statement immediately describing exactly what happened and who said want to who [...] post it up here so that we can have a look and help you adjust the format"

[Man in the middle]

Quote

...I would be sent notification of prosecution, which has just come through - six points and £200 fine or else a £90 3-hour driving course. 

 

That isn't a notification of prosecution. It is the details of the alternatives being offered to avoid prosecution. If you decline either of those, prosecution (i.e. court action) will follow. The choice you must make is whether to accept one of those offers or have the matter dealt with in court.

[BankFodder]

In terms of the statement – I'm sorry that I got confused and I was actually asking you to prepare a statement to present to the bench in the event that you decided to plead guilty.

I hope you don't think I've wasted your time – but let me say that whether you plead guilty or not, having the fact straightened out in your mind will be a good thing.

You'll notice that I've taken some of the sarcastic remarks out. If you use that kind of approach or tone – however justified you might be – you will simply alienate the people who you are depending on to see things from your point of view or to take a lenient view.

I'm not sure that you have yet decided whether to plead guilty. If you really didn't use the phone in the way that you say then it will be a terrible shame to plead guilty. However if this is what you want to do then let us know and I will suggest some amendments to the statement that you should present.

If you plead not guilty then I think you would be entitled to ask the court to require the officer who actually saw you with the telephone in your hand to give evidence.
If there were that many policeman police officers around, that might be difficult. I would also want to see that police officers notebook to see how many motorists he/she had noted down around the time that you were apparently spotted using your phone.

One thing that comes to mind – you say that your baby daughter was in the well of the front passenger seat. Might it be at all possible that you reach down into the well to arrange a blanket or to check her or to give her a reassuring touch on the cheek? Might it be possible that this movement was construed as you putting your phone away?

Of course it might be equally unlawful to reach down to the well to look after your daughter because it would indicate that you were not fully in control of the vehicle – and that's what using a telephone is all about. However, the important thing is that you are not charged with that. And that means that if you could get the police to admit – grudgingly – that yes, they saw a movement which could have been you reaching down into the well rather than using a phone but they interpreted that as being a telephone, then it would have to be not guilty.

As you can see I'm looking for other explanations as to why you might have been identified as using a telephone at the time you were driving.

Think back in a calm way about your journey with your daughter in the front well of your car.

[Man in the middle]

Quote

I'm not sure that you have yet decided whether to plead guilty. If you really didn't use the phone in the way that you say then it will be a terrible shame to plead guilty. However if this is what you want to do then let us know and I will suggest some amendments to the statement that you should present.

 

If you are going to plead guilty there is absolutely no point in allowing the matter to go to court. It will see a fine of a third of a week’s net income, a Victim Surcharge of 10% of the fine (minimum £34), £85 costs and six points.

 

If you intend to accept the allegation, by far and away the option with the least damage is the course you have been offered. No conviction, no endorsement, no points.

 

If you don’t fancy that then the fixed penalty of £200 and six points is the best alternative offer you will get. If you accept either of these options you need offer no explanation or mitigation as no consideration is made for the circumstances of the individual offence.

 

The out of court disposals are fixed regardless of what actually happened or what explanation there.may be.

 

Quote

If you plead not guilty then I think you would be entitled to ask the court to require the officer who actually saw you with the telephone in your hand to give evidence.

 

If you plead Not Guilty you will be given a date for a court hearing (which may be up to six months from the date of the offence).

 

Before that hearing you will be served with the “Initial Details of the Prosecution Case” (IDPC). This is to enable you to formally enter your plea and must consist of the evidence the police intend to rely on to convict you.

 

I imagine it will be no more than the officer’s statement. If you disagree with his evidence and want to challenge it, you are entitled to have him attend court to be cross-examined. Unless he attends his evidence cannot be considered by the court.
 

Edited January 7, 2022 by dx100uk
added A few blank lines only..dx

[Hair Bear]

Apologies if I have not made myself clear or have misunderstood advice. The choice I am personally deciding between is either

 

(a) going on the course - I get no points but am admitting guilt to something I didn't do. I will also lose £90 and indeed the chance to go on another course for three years if ever I actually do infringe the law, meaning drive at, say, 38 in a 30 zone.

 

(b) going to court in an attempt to win my case - if I win great, but if I lose it means 6 points and lots more money than £90.

 

I am leaning towards B, but if people think I can't win, I will reconsider. I certainly have no intension of going to court to plead guilty, or to take the six points now.     

 

If you lot believe I can win in court, I'll go for it, but will need instruction on how to go ahead (I thought that the statement was part of that process).

 

"Might it be at all possible that you reach down into the well to arrange a blanket or to check her or to give her a reassuring touch on the cheek? Might it be possible that this movement was construed as you putting your phone away?" Yes it is possible. 

Edited November 14, 2021 by Hair Bear

[unclebulgaria67]

If you genuinely were not using a mobile phone or any other device, then you should be furious enough to attend a Court and argue the case.

 

Could it be that while you were sat bored in traffic in your car, that you were supporting the side of your head with your hand ?   From a distance this could look like you had a mobile phone to your ear.

 

I suspect that they only have the evidence of a Police Officer who was observing cars before you were stopped.   If you have information that casts doubt on this evidence, then you are in the hands of Magistrates, so make sure you have clear information the Magistrates can see.

 

[BankFodder]

9 minutes ago, Hair Bear said:

"Might it be at all possible that you reach down into the well to arrange a blanket or to check her or to give her a reassuring touch on the cheek? Might it be possible that this movement was construed as you putting your phone away?" Yes it is possible. 

 

Yes but the important question is – might it have happened?

Would you be prepared to say to the court that you did from time to time reach down to reassure or to check on your baby and this is the only possible explanation for the belief by the police officer that you were using a telephone

[Hair Bear]

"Could it be that while you were sat bored in traffic in your car, that you were supporting the side of your head with your hand ?" 

 

"Would you be prepared to say to the court that you did from time to time reach down to reassure or to check on your baby"

 

The only legit thing I can recall is checking to see if the note in my pocket was a fiver or tenner, but I didn't lift it to my head - I just looked at it next to my pocket for a split second and then re-zipped my pocket. It is possible that a copper (bent on pulling over as many people as possible) might have thought that I was looking down at a phone, but surely this this would sound pretty lame in court, as though I'm desperately trying to think up a story to support my case. 

 

Head: I'm fairly sure I didn't support my head, although anything like that is possible. Again, though, that sounds too much like I've gone away and thought up something.

 

The daughter angle seems more reasonable a defence (as you are admitting guilt to reckless driving, but as pointed out, this is not what I am charged with), not least because the questioning copper did not make any reference to her, or even look at her. I actually came away wondering if he knew she was there at all. Certainly the cop who falsely claims to have seen me on my phone did not know she was there. That said, is it not better to simply say I wasn't on the phone and to produce phone records and battery usage, rather than come up with something the police may or may not have seen? 

 

Am I allowed to ask them now for their proof? It would be interesting to hear what they have to say.

 

Edited November 14, 2021 by Hair Bear

[Man in the middle]

Just for clarification, the course you have been offered is different to a speed awareness course. It will not affect your eligibility for a speeding course should you commit a low-level (i.e. up to Limit + 10% + 9mph) speeding offence.

 

The difficulty you have here is twofold:

 

Firstly you do not know which offence they may charge you with. It may be "using a mobile phone" in which case the police have to prove not only that you were using your phone whilst driving but also what the phone was being used for (the care of Barreto comes in here). From what you say they may have difficulty doing either of these since you were not using your phone at all. But they may charge you with "Failing to be in proper control". The requirements to prove that offence are far less onerous. The problem comes in because by the time you face one or other of these charges the opportunity for a course or fixed penalty will be lost.

 

Secondly, whatever charge you might face you will not see the evidence the police intend to use until court action is begun. Once again, your out of court options will be lost by then.

 

Nobody can tell how a trial is likely to turn out. None of us were there and so do not know what the police might or might not have seen. However, the police must prove their case beyond reasonable doubt. Courts do not routinely believe police evidence unconditionally. However, they always have in mind that, whilst the police may sometimes be mistaken, they generally have no reason to commit a serious offence by lying either when making a statement or providing live evidence in court. They have plenty of opportunities to catch genuinely errant motorists without the need to perjure themselves. 

 

I appreciate this is a difficult decision for you. If you are convicted following a trial the prosecution will probably ask for costs of around £620. The court does have the discretion to reduce these according to your means, but it will nonetheless cost you considerably more than the offers you have been made. Let me know if I can help further.

[Hair Bear]

"You do not know which offence they may charge you with. It may be "using a mobile phone" [...] But they may charge you with "Failing to be in proper control"

 

Is this not clear on the notification they sent me? It reads: "You have admitted to being the driver of the vehicle...at the time of the alleged offence - Use a handheld mobile phone/device while driving a motor vehicle on a road"

[BankFodder]

Yes I think it is clear and I don't understand why this discussion is starting to raise doubts about this.

Some aspects of this discussion are starting to derail the point of this thread.

The fact is that you didn't do it and you are trying to understand whether you should plead guilty, get out of the way even though that will cost you something – or else stand your ground and present your story in court.

Obviously this is a decision that you will have to make.

I think it's highly improper to encourage – even subtly – that should accept the penalty simply because you don't trust the court system.

It is your decision.

One of a way of approaching it could be to agree to accept the penalty – but I expect that in the form there is space to put mitigating circumstances.
In that case you could use that space to explain that you are simply accepting the penalty but you didn't do it and there is clearly a mistake. You are simply accepting the penalty to minimise the risks of a more serious punishment and at the moment as you have a sick child and very serious commitments to her treatment that you feel that it would not be prudent to face a trial on the issue at the moment.

You would then go on to explain broadly speaking what was put in your statement earlier – we can work that up.

Of course it would be highly improper of them to accept your plea – unless they are simply doing a rubberstamping job and they don't notice. If that's what happens, then I think you would have good grounds for making a complaint about the decision.

If they did take notice and reject your plea and then insist that you went for hearing, at least they would then have a very thorough explanation of what had really happened and they will also be aware of what you are likely to say in court.
Although this is distasteful, if you're prepared to provide pictures of your daughter in the well of the car, a picture of your daughter stoma, as the medical notes to support your statement of mitigation, then you could well be that they would abandon the prosecution.

Although you have been offered an opportunity to accept a penalty now, I am not at all sure that a final decision to prosecute has been made. At the moment they only have the story from the police but if you use this way to "game the system" you might find that a sensible prosecutor would realise that there is a serious chance that they could not secure a conviction.

What I'm suggesting here is a very non-conventional approach. It might not work at all. But I think it is a way forward to undermine the confidence of the prosecution.
If they did simply rubberstamp the penalty, then I think you would have a good basis for complaining that they had handed you a penalty despite your very clear statement that you are denying that you committed the offence.
 

Maybe you could put up a copy of the form here in PDF format so we can see it and understand it

[Hair Bear]

letter from police pdf.pdf

 

I hope that that PDF is okay?

 

"Although this is distasteful, if you're prepared to provide pictures of your daughter in the well of the car, a picture of your daughter stoma, as the medical notes to support your statement of mitigation, then you could well be that they would abandon the prosecution"

- if my daughter could speak for herself I'm pretty sure she would say "Go for it, Dad", so yes, for justice I am prepared to go the whole hog. 

[BankFodder]

Thanks, not at all what I expected.

 

It's all very stark – and deeply unfair.

If you decide that you want to go to trial then you have to write to them and I think that this would be a good time to supply statement, and the photographs that I have suggested and the medical notes that I have suggested.

I think I would also point out that you are giving them notice that you require the officer who apparently saw you with the telephone to come to the court and give evidence.

I suppose that if you are found guilty then they would also be the question of costs.

All I can say is that if you want to challenge them then this is the way that I would do it. I wouldn't simply write to them and say that you want to challenge. I would give them a full account – advance warning, as it were of what you are going to be saying and the evidence that you are going to be producing in court.


 

By the way, I asked before whether you had any points on your licence/convictions and you didn't respond.

Tell us something about your driving history

[BankFodder]

I also find that it's deeply unpleasant that the letter starts off saying that you "admit to being the driver", as if that is the offence and that is what has condemned you.

The notice was issued on 26 October. You have 28 days to reply.

Make your decision. If you want to put your hands up then let us know and if you want to challenge it then let us know.

[Hair Bear]

I will challenge them. Points - none.

[theberengersniper]

One other suggestion, which I didn't see as I was skimming the thread, would be to visit your local phone repair centre and ask them to look at your phone diagnostics. The repair agent should be able to tell, using the appropriate diagnostic tools, which they will have, when your phone was switched on or off and when. They could then more than likely print off or produce a report for you.

[BankFodder]

If that is possible to do then of course it is an excellent idea.

Of course in addition to the matters relating to your daughter's illness which I suggested you include in your statement – you would also refer to your record of incoming and outgoing calls and also texts and supply along with the photographs et cetera and notes of your daughter, copies of those as well.