Pulled for driving on M62 using mobile phone?

[hassy786]

Hello

I got pulled on the motorway m62 with the undercover police (2 of them) on the overtake lane

they asked me why they stopped me, which i said maybe for no insurance (trader using trade plates car not on the mid)

they insisted I was using my phone whilst driving with my thumb pressing the touch etc which I said no I wasn't and my phone is on the passenger seat.

Now I did send a text using Google assistant which is all handsfree therefore I wasn't physically using the phone but they insisted they saw me using it.

I know they wouldn't have any proof of me using it but how would it go about in court as it seems to be my word against there's.

Not only did they accuse me of the phone, they also wanted to search my car along with checking my insurance and road tax and nearly impounding the car as the tax expired

I told then I didn't realise and can do the tax straight away to prevent the car being towed away, they just seemed like they weren't having it and wanted to accuse me of something (anything they could find).

They decided at the end to let me go back on my way and drive the car and get the tax done "as soon as possible" whereas before they where going to impound it.

I did show my phones messages and indeed there was a text sent 2 minutes before being pulled, my argument to that is that it was done handsfree.

going by them not having actual proof of me driving with my phone (windows where tinted black, its a auction car, I am aware that's illegal in itself and the tint will be removed) and it was dark at night in the hours of 9pm, there was definitely no chance of them having a picture of me with a phone in my hand.

there was 2 officers with the same story however my story is the text was done handsfree.

How would this go about in court?

I am definitely not looking forward to 6 points and would rather fight my case.

 

Thank you.

[dx100uk]

post spaced, title updated.

see if you get a NIP in the post first.

dx

 

[Man in the middle]

Quote

see if you get a NIP in the post first.

You won't get a NIP for two reasons:

1. A NIP is only required if the driver was not stopped and warned at the time that a prosecution is being considered.

2. Mobile phone offences do not require a NIP in any circumstances.

You may, however, get an offer of a fixed penalty (£300 and six points).

You are on a sticky wicket here. If you look at the legislation (Road Vehicles (Construction and Use) Regulations 1986, Reg. 110) it says this:

For the purposes of this regulation—

(a)a mobile telephone or other 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; [my emphasis]

You said that your phone was on the passenger seat. It is hard, therefore, to imagine that it need not be "....held at some point during the course of making or receiving a call or performing any other interactive communication function." But I think you have a bigger problem than that. You will face testimony from two police officers who will both say they saw you using the phone. They have nothing to gain by perjuring themselves (and frankly, catching drivers using mobile phones is akin to shooting fish in a barrel). Your task will be to persuade the court they were both mistaken. On your own admission, you were using the phone and, by the definition provided in the legislation, it is not a hands-free phone. 

I would say you face an uphill struggle.

As an aside:

Quote

told then I didn't realise and can do the tax straight away to prevent the car being towed away,

Why would you worry about tax? Your trade plates would have overcome the need for you to tax the car (provided you were using them in accordance with their conditions). They would not, however, have provided you with insurance cover. Nor would they have absolved the Registered Keeper (if any) from ensuring continuous cover was in place as required by s144A of the RTA.

[hassy786]

The officers who stopped me where literally finding any excuse to get me done for,

they at one point even said "Shall we do a search" leading to believe I could have drugs in the car!

They where literally throwing accusations around about phone use, swerving while driving thinking I may even have been drunk and then car with no tax or insurance on the mid.

Regardless of what I was going to say to them they would still have found a way to write me a ticket for anything. Even if I had said to them at the time the text was sent using google assistant and the phone is on the seat with the satnav on to get me home with the phone connected to bluetooth to the cars radio, I dont think they would have accepted any of it either way.

1 officer was driving and the other in the passenger seat so its not possible they both saw me sending a text message regardless and ofcourse the officers will just side with each other no doubt there but is it purely based on my story against theirs or will the judge ask for some kind of prove to show I was guilty?

The way I look at it is the officers assumed I may have drugs etc and therefore pulled me over to do their checks on the car etc. There's no proof of me being on the phone even when they had the bodycam on and asked me what im being stopped for

I replied back with Possibly for no insurance then when he said no you where on the phone, I replied back with no I have the satnav up on the phone but the phones on the seat as you can see.

I am taking a wild guess on them having any footage of me actually using the phone so it is pretty much their word against mine.

I could argue in court the officers kept throwing accusations out for dangerous driving then phone use and then car with no insurance and tax and I panicked wondering whats actually going on here as im fully legal to drive the car etc as I already proved to them...

Even when I did prove the insurance etc they still insisted on impounding the car as the plates where expired 2 months ago (silly me has forgot to renew them) however I did tell them I can put fresh tax on the car straight away before I drive off again which for some reason they didn't want to accept as well but then they let the car go based on it having "previous tax on the system"?

I think it will all come down to phone use however my argument is the text was sent handsfree and if theres any evidence with their camera etc to prove they saw me on the phone then show it..Which would be near impossible as the windows are tinted black on the front and im dark skinned with a black jacket so you definitely cant see my hands etc in the dark if I was on the phone.

Will the judge side with them based on them "both" seeing me with the phone or will the judge expect some actual proof of the phone in my hand? 

Thank you for the feedback I appreciate it. 

Not to mention I already have 6 points (Wrong place wrong time).

3 for towing a trailer in the overtake lane when I first started using the trailer which I didnt know of

3 for speeding +7mph over the speed limit,

learnt my lesson for them both but if I now get 6 for being on the phone I will be on a ban which i really cant deal with it.

True when they say at times bad luck comes to your door step

Edited March 21 by dx100uk
unnecessary previous post quote removed

[Man in the middle]

 

Quote

...and ofcourse the officers will just side with each other no doubt there but is it purely based on my story against theirs or will the judge ask for some kind of prove to show I was guilty?

“Proof” is whatever the court finds as proof. The testimony of the two officers is evidence and if, based on that evidence, the court is sure, beyond reasonable doubt that the offence was committed, you will be convicted. There is a popular misunderstanding that there needs to be photographic evidence to support offences of this kind. There need not. Testimony from eye witnesses is often sufficient. You need to take a step back from the alleged persecution you say you have suffered (a court will not be interested in that) and concentrate solely on the offence with which (I assume) you will face.

Quote

I think it will all come down to phone use however my argument is the text was sent handsfree and if theres any evidence with their camera etc to prove they saw me on the phone then show it.

You need to understand the elements of the offence. If the phone must be held at some point to undertake its functions it is considered to be “hand held” (whether you were holding it or not). There is little doubt that a court will find your phone, as you have described it, to be hand held. There is also little doubt that you were using it. Some of the things you have said here simply compound your problems. For example:

Quote

“I have the satnav up on the phone but the phones on the seat as you can see.”

What I think you are missing here is that you do not have to be holding the phone to be “using” it. It’s the design of the device itself which determines whether it is “hand held” (as I explained in my first post). If it is a hand held device, then using it as a satnav on the passenger seat would see an offence committed. The revised mobile phone legislation (introduced January 2022) makes doing virtually anything with a hand-held device into an offence.

Of course it’s your decision whether to defend this in court. Failure (apart from the points) will be expensive. You will pay a fine of at least half a week’s net income, a “Victim Surcharge” of 40% of that fine and prosecution costs which will be at least £620. No change out of £1k for most people. Your points situation is unfortunate. Firstly it means you cannot accept a fixed penalty even if was offered and you wanted to accept it as the six points will indeed see you liable to a six month “totting up” ban. So your case will be heard in court. If you are convicted you can only avoid disqualification if you can convince the court that “Exceptional Hardship” will be suffered by you or others if you are banned.

Let me know if I can help further.
 

[hassy786]

Thank you for your quick response,

I guess I will wait for the letter to arrive first and see what’s written on it..

if like you say it will be 2 officers word which will be sufficient enough then I guess I will have to take the 6 month ban as it won’t leave me any other choice. 
 

Quick question

- What happens to your points after the 6month ban?

Do they get halved or completely removed or?

It’s unfortunate but I guess it was meant for me so other than taking it on the chin nothing else left to do about it

 

Thank You

[Man in the middle]

A "Totting Uo" ban removes all points from your record.

[hassy786]

I guess I should have then asked how long do you have to declare a ban for on your insurance?

[dx100uk]

5yrs