Q: I want to ask a question about disputing a traffic ticket. I’ve searched through this site and most talk about touching the phone, but in my case I did not touch the phone but simply bent over to correctly read the map direction. Unfortunately I didn’t have a mounting device and the phone was placed near the gear/side break (hence the bending over slightly to the right to see it).
The officer then pulled me over saying he saw me bend over and saw the phone with the maps app on right next to the gear. He wrote me a ticket for MVA 214.2(1) "Use electronic device" and I would like to dispute it on the grounds that I was not “using” it as per the MVA (holding it in the hand, swiping the screen, talking to it, etc.).
He didn't ask for my signature, so the ticket is unsigned by me.
The officer did mention while giving me the ticket to dispute it first, then when we meet at the hearing, show proof that I'd bought a mounting device (which I did) and he'd "reduce the amount." But I'm wondering if there's a way to dispute it altogether, as I've looked it up and read this will cost 4 penalty points as well as another $175 (on top of the $368) for first infractions.
I'm a class 5 driver.
Is this valid?
Probably the best place to start is to review the definition of "electronic device" and "use."
From Section 214.1 of the Motor Vehicle Act:
"electronic device" means
(a) a hand-held cellular telephone or another hand-held electronic device that includes a telephone function,
(b) a hand-held electronic device that is capable of transmitting or receiving electronic mail or other text-based messages, or
(c) a prescribed class or type of electronic device;
Currently, the "prescribed class or type" mentioned in (c) above is found in the Use of Electronic Devices While Driving Regulation:
Prescribed electronic devices
3 (1) The following electronic devices are prescribed for the purposes of paragraph (c) of the definition of "electronic device" in section 214.1 of the Act:
(a) electronic devices that include a hands-free telephone function;
(b) global positioning systems;
(c) hand-held electronic devices, one of the purposes of which is to process or compute data;
(d) hand-held audio players;
(e) hand microphones;
(2) In subsection (1), "hand microphone" means a communication device consisting of a hand-held unit that
(a) is both receiver and microphone,
(b) is operated by a push and hold-to-talk function, and (c) allows for oral communication, but not for the transmission and receipt of oral communication at the same time.
From Section 214.1 of the Motor Vehicle Act:
"use", in relation to an electronic device, means one or more of the following actions:
(a) holding the device in a position in which it may be used;
(b) operating one or more of the device's functions;
(c) communicating orally by means of the device with another person or another device;
(d) taking another action that is set out in the regulations by means of, with or in relation to an electronic device.
The "other action" mentioned in (d) above is also found in the Use of Electronic Devices While Driving Regulation:
"Use" further defined
2 A person who watches the screen of an electronic device uses the device for the purposes of paragraph (d) of the definition of "use" in section 214.1 of the Act.
So, given your description, you were "using" your cell phone which is an "electronic device" according to these definitions.
In general, using an electronic device while driving is prohibited and as you mention is costly in terms of both the ticketed amount and the number of penalty points assigned to a conviction.
However, the use of the GPS function of a cellular phone may be exempted from this prohibition.
Global positioning system
8 (1) Subject to subsection (3), a person may use a global positioning system for navigation purposes while driving or operating a motor vehicle on a highway, if the system is
(a) installed in accordance with section 4 if subsection (3) of this section does not apply, and
(b) operated in accordance with this section.
(2) A person may use a global positioning system while driving or operating a motor vehicle on a highway, if the system
(a) is programmed before the person begins to drive or operate the motor vehicle, or
(b) can be programmed in a voice-activated manner.
(3) If a global positioning system is a hand-held type, a person may use the system while driving or operating a motor vehicle on a highway if, in addition to the requirements of subsection (2), the system
(a) is not held in the person's hand, and
(b) is securely fixed to the motor vehicle in a manner that does not obstruct the person's view of the front or sides of the motor vehicle or interfere with the safety or operating equipment of the motor vehicle.
You have run afoul of the requirement mentioned in 8(3)(b) because you did not have your cell phone securely affixed to the vehicle. Since you do not have an exemption from the prohibition, the officer has correctly issued you with a ticket for the illegal use of an electronic device while driving.
Prohibition against use of electronic device while driving
214.2 (1) A person must not use an electronic device while driving or operating a motor vehicle on a highway.
As an aside here, if you are a driver in the Graduated Licensing Program (GLP) (ie: hold a class 7L or a class 7N licence), you must not use any kind of electronic device while driving.
The officer has two options in the circumstances, write the ticket or not. Obviously, the choice was made here was to write it.
Having done so, the officer has offered to mitigate the impact of the fine shown on the traffic ticket to make buying a mount for your phone more attractive.
I suspect that his intent here is that you would dispute the penalty in person rather than in writing.
You do have the right to dispute the allegation but the offer of reduction might not extend this situation. Since you are in violation, you would need some other ground to have the ticket dismissed, and not having signed it yourself to acknowledge service is not one of them.
Of course, regardless of any adjustments to the fine, you will still receive the penalty points. In order to avoid points you will have to have the ticket dismissed.
It's great to have a clear explanation of the pertinate matters, it helps me to understand the rules that are currently in effect.
Thank you for an excellent website!
The case of R v Sangret heard in the Supreme Court of BC further defines the definition of "use."