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Don’t Touch the Phone

Although March is technically “Distracted Driving Awareness Month” in BC, August is also a good month for a comment on these rules and the penalties for not following them.  This is because August, despite its good weather, long days with lots of daylight driving hours, and usually minimal visibility issues, tends towards having amongst the worst crash statistics.

The August increased crash numbers may be partly due to the number of vacationers on road trips.  So far this month local newspapers have carried stories of terrible head-on crashes in Oregon and Alberta involving multiple fatalities within families.  Although we don’t know whether or not distracted driving was a factor in these particular cases, head-on crashes these days typically raise the question of possible cell phone use.

The law in BC says a person must not use – as technically defined – an electronic device while driving or operating a motor vehicle on a highway —with some exceptions.  ‘Use’ is defined as including holding the device in a position in which it may be used, and operating one or more of the device’s functions.  This definition has meant that drivers caught merely holding their phones in their lap, or between their legs, or in their hand have been ticketed.  Even just holding the phone while plugging it in for re-charging or just holding it ‘out of habit’ may lead to trouble under the legislation.

And then on the morning of August 17, 2017, down the road came a white pickup truck with the driver allegedly holding his phone in his hand ‘atop the steering wheel’ straight into the view of a police lookout set to watch for seat belt usage, and distracted driving from improper cellphone usage.  In response to the resulting charge, the driver said he had picked up his phone to move some papers on the passenger seat, had no intention of using it, and even if he had intended to use it, he was prevented from doing so by an (unspecified) app on the phone installed by his employer to prevent usage while driving.

In July 2018, the judge in the “white pickup truck” case ruled, “The Legislature has drawn the bright-line of holding a device where it is potentially distracting, whether in fact it is or is not distracting… But in my view, the legislature has not prevented the driver from mounting a defence based on proof that he or she could not have been distracted by the device’s functions.” The judge added that even if his legal analysis was wrong, the driver still deserved acquittal for due diligence: “if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event.”

Then, not long after this ruling, another BC court addressing the case, said the judge’s interpretation that “simply holding an electronic device is not sufficient” for a distracted driving conviction was “simply wrong.”

The fines for distracted driving may start at $368 and 4 penalty points for a first offence.  The costs go up with each subsequent offence.  Insurance costs may also be affected.