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

How is this offence committed?

If a motorist uses a mobile phone whilst driving in a public place in a way that is prohibited and handles the phone, technically an ‘interactive communication device’, at the same time, the offence is committed. The offence is aimed at motorists who handle an ‘interactive communication device’, such as a smartphone, which enables the sending or receiving of data (commonly such as the sending or receiving of text messages or pictures or the making or receiving of phone calls). If it is touched whilst the phone is being used for such a purpose then the offence is made out.

When is the offence NOT committed?

If the interactive functionality of the device is not being used at all but the device is being used, for example, to take pictures or film or some other use, which does not involve the sending or receipt of data, the High Court has now confirmed that the offence is not committed. However, the court also stated that there are circumstances in which it has yet to be decided if an offence is committed or not (see the following paragraph)! Of course, if you are using a hands-free kit and simply operate the phone without touching it at all, for example, by touching buttons on the steering wheel, again, this offence is not made out.

Grey Area

There is a grey area of activity where the court said that there may be an arguable case that the offence has been committed such as when a motorist does use a phone whilst driving but to draft a text message in preparation for sending it or such as looking at messages which had been downloaded previously. Be warned, however, that the court emphasised that handling a phone for any purpose at all whilst driving could involve the commission of other offences such as careless or even dangerous driving!

Penalties

This offence is dealt with by way of the endorsement of 6 penalty points (or a disqualification) plus a fine. If a fixed penalty is accepted then it is dealt with by way of endorsement with 6 points and a £200 fine. 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.

Defences

As well as the defence mentioned above, for example if the motorist uses the phone whilst driving to take pictures or for some other non-interactive function, there are also 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 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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