Using handheld device whilst driving
In England and Wales for the offence to be committed the device has to used whilst driving a vehicle, has to be handheld and also be adapted for the purposes of interactive communication.
The law in relation to this offence was first drafted in the 1980s before the more recent advances in technology and is therefore open to interpretation. A question that regularly crops up is “am I guilty of the offence if I am using the phone but not to make a call or send a text?” The answer to that question is not certain.
If you were not on a call…
In a case where a driver picks up his phone in order to access information or use an application but is not actually using the phone to make a call even though the phone has been adapted for that purpose. In our experience there has been a lack of consistency throughout the Courts in relation to how this area of law is applied.
It is important that, if you intend to dispute an allegation of this nature, that you immediately contact your service provider for records of all incoming and outgoing calls and text messages that can be produced at Court if necessary. This information will not always appear on a normal phone bill.
On conviction the offence will almost always carry 3 points and a £60 fine. However, it should also be remembered that a person who commits this offence may also be prosecuted for careless and dangerous driving if an accident has occurred or the standard of their driving was affected as a result of the use of the handheld device.
As of March 2017, the penalty for using a handheld device is 6 points and a minimum £200.00 if a fixed penalty is issued.
The question as to what amounts to using the phone is open to interpretation. In our experience, most courts have convicted if is shown that one of the features on the phone was being used even if not for sending a message or making a call. Using the sat nav feature on a phone would almost certainly be classed as using it as would picking it up to see what the time is or taking a photo. If the phone is in your hand.
If you accept you were using the phone it is open to you to pay the fine and accept the points providing that you have less than 6 current points on your licence. If you have 6 or more points on your licence the matter will result in court proceedings as if convicted, consideration will be given to a disqualification under totting up of at least 6 months.
This defence is unlikely to succeed as it would be extremely difficult to prove that there was no alternative other than to answer the phone and the call could not have waited until you had stopped the car.
No, this is not a defence. However important the work call was it does not justify driving whilst using your phone.