Driving offence: using a mobile phone whilst driving
Avoiding conviction for talking on the phone while driving
1. What is the legislation that you are supposed to have breached?
2. What is the evidence against you?
Texting while driving
Penalty for using a phone while driving
You should therefore ask yourself, ‘what do I have to lose by challenging the evidence?’. If you plead guilty and accept the fixed penalty you will receive 3 points on your licence (and a likely increase in insurance premiums). If you plead guilty after seeing all the evidence against you (this may take several weeks or months to obtain), you will still only receive 3 points. Even if convicted after a trial you still only receive 3 points.
Get the right help and advice
Defending against the charge of using a mobile phone while driving
So how can the police prove that you were ‘using’ the phone? Remember that ‘using’ is making or receiving a call (or text, email) whilst holding the phone. The only accurate way is to obtain your telephone records but my guess is that they will not do so (in all the mobile phone cases that I have defended I have never had one case where the police bothered to obtain phone records). Without records how will the prosecution service prove the existence of a phone call?
If you have not yet received a summons or police witness statement then please contact me for further advice. There are steps that can be taken to try to avoid the issue of a summons.
In order to have any chance of obtaining telephone records, the police officer should have obtained the make, model, serial number and telephone number of your phone. He could also have checked your call log. It would have been sensible for the police officer to ring the telephone number (if he obtained it) just to make sure it was the number of the phone you had with you. This avoids the problem of people giving the number of a different phone!
Your defence is likely to take one of two forms:
- You were not making or receiving a call.
- You were making or receiving a call BUT you were using a Bluetooth headset or hands-free kit (not holding the phone).
If you were not making or receiving a call then it is possible to make your defence even stronger. In this situation I would normally request telephone records for the phone that you were not using. These telephone records must come direct from your service provider in order for them to be admissible in evidence (used in court to assist your defence).
However, your case may be dropped by the CPS even before you have to attend court. This is because we can serve a copy of the records on the CPS. The CPS will likely drop the case if there is no evidence of a call.
Please note that telephone companies can charge up to £150.00 for providing a copy of telephone records. It will also be necessary to obtain an order from the court (known as a witness summons) to force the telephone company to hand over the records. Despite the additional cost, it is obviously an advantage if we can obtain such records as this may result in the CPS dropping the case without it even going to court – and costs can usually be claimed back from central funds.
If you were using a Bluetooth headset or hands-free kit to make or receive a call, this is not regarded as using a mobile telephone whilst driving. This is because you were not holding a mobile telephone. We do, of course, need to show evidence of your hands-free kit such as the receipt, instructions, photographs or the kit itself.