Driving offence: using a mobile phone whilst driving

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Avoiding conviction for talking on the phone while driving

If you have been accused of using a mobile telephone whilst driving you may be thinking of just pleading guilty and taking the points. Don’t! There are several reasons why the evidence from the police may not be good enough for a conviction.
First of all, consider two issues:
1.    What is the legislation that you are supposed to have breached?
2.    What is the evidence against you?
It is likely that you have been charged under Regulation 110 of the Road Vehicles (Construction and Use) Regulations 1986 (the first page of the summons will state the law used). This is good news because since this law was introduced there has been considerable uncertainty as to what it actually means!
The actual offence occurs when a person is driving a motor vehicle on a road and is using a hand held mobile telephone. The legal position is that a mobile telephone is deemed to be hand held if it is actually held at some point during the course of making or receiving a call.

Texting while driving

There is also an offence of using a hand held device (to include a device other than a phone) if it is used to perform an interactive communication. The interactive communication function is not defined but would include sending or receiving texts, emails, browsing the internet, etc.

Penalty for using a phone while driving

Using a mobile telephone whilst driving carries 3 penalty points and a fine.

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

Marcus Johnstone has personally represented numerous clients accused of using a mobile phone whilst driving. He has an exceptional success rate and some of the testimonials can be found on the Testimonials page. Marcus will also be pleased to discuss with you the types of cases that he has successfully defended and will be able to give you an indication of the chance of success with your case.
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Defending against the charge of using a mobile phone while driving

So why can this law be so confusing? Well, it is important to consider each part of the offence and then consider whether the police or the Crown Prosecution Service (CPS) has the evidence to prove it. The main elements of the offence are:
a.    Were you actually “driving” the vehicle at the precise time of the alleged offence? If you were stopped at the time then you may not be regarded as driving.
b.    Were you on a “road”? This is generally taken to mean a public road. Therefore a private area such as a private driveway or car park may not amount to a road.
c.    Can the police prove that you were “using” the phone? Look carefully at the witness statement from the police officer (this should be included with the summons pack). My guess is that the officer has only stated that he saw you holding a phone. The usual phrase is that he saw you holding a phone to your right ear and you appeared to be talking into it. Most mobile phone cases can be won just on this point alone – ‘holding’ is not the same as ‘using’. More detail on this point can be found below.
d.    Can the police prove that the phone was “hand-held”? If a call was being made but via a Bluetooth headset or hands-free kit then there is no offence. Can the police prove that you were even holding a phone? Holding a iPod, dictation machine, Bluetooth earpiece, etc, would not be an offence.
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Now you are more aware of the elements of the offence, let’s consider the evidence against you. As noted above, you should have been sent a copy of the witness statement from the police officer who apparently saw you ‘using’ the hand-held phone – making or receiving a call. Most statements that I see simply refer to ‘holding’ a phone (because this is what the officer believes he saw). The officer may say that he saw you ‘using’ the phone but this is much more difficult for him to prove.

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

Your defence is likely to take one of two forms:

  1. You were not making or receiving a call.
  2. 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.

For an informal discussion of your case please telephone Marcus on 07808 553 555. If you would prefer not to telephone, please complete the online assessment form.
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