Have you been accused of using your mobile phone whilst driving?

How is this offence committed?

A motorist using a phone driving a vehicle in a public place does not commit this offence unless or until s/he handles the phone. So long as s/he uses a hands-free kit and does not touch the phone s/he does not commit this offence. Motorists should be careful as to what constitutes ‘driving’. Being in a stationary queue or at the side of the road does not mean the car is not being driven. Even if stop / start technology kicks in and the engine turns itself off (in a queue, at a junction or simply as the traffic has come to a stop) the car is still being driven and so touching the phone would still amount to an offence (so long as it is being used for an interactive purpose such as texting or making or receiving a call).

When is the offence NOT committed?

If a car is parked in a parking bay and the engine is off then it is safe to use a phone and no offence will be committed. There is also an exception if the phone is being used to call the emergency services using 999 or 112, it is a genuine emergency situation and it is unsafe or impracticable to cease driving. Motorists should be clear that the police can still prosecute in a case in which they consider there is evidence to show that a driver was distracted by a phone even if s/he did not touch it. For example, if during an animated conversation a driver is deemed to be paying insufficient attention to the road s/he could be prosecuted for driving without due care and attention. Drivers should also be careful to ensure that any smartphone is appropriately mounted and positioned so that it does not, for example, hinder vision of the road or control of the vehicle.

Penalties

This offence is dealt with by way of the endorsement of 6 penalty points and a fine. If a fixed penalty is accepted then it is dealt with by way of endorsement with 6 points and a £200 fine. (With any offence which carries the power to endorse one’s licence with penalty points the court also has, in an appropriate case, the power to disqualify instead.) If the endorsement of penalty points means that you will have a total of 12 or more relevant points on your Driving Licence this means that you can expect to be disqualified for at least 6 months (unless you can establish that you would suffer from ‘exceptional hardship’ – see penalty points disqualifications for more information on this). If you are a ‘New Driver‘, of course, the endorsement of only 6 penalty points on your licence would result in its automatic revocation. (It might be possible to avoid revocation of licence by persuading the court to impose a short, discretionary disqualification instead of endorsing penalty points).

Defences

There are cases in which the police have mistaken the identity of the user of the phone such as when a passenger not the driver was using a phone  (see a case study of one such case here). We have also successfully defended motorists when holding a speaker or other object to the ear which the police thought was a phone. We successfully defended one motorist in which he was smoking a pipe (although the officer thought he was holding a phone to his ear!) If the phone is not being used for an interactive purpose, such as taking photos or videos, then, too, there will be a defence to the allegation.

If you would like help to prepare and present your case or if you are unsure whether or not you have a defence then do not hesitate to get in touch.

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