# Driving & Mobile Phones



## Guest106 (11 Aug 2008)

Just wondering how the Guards go about checking for people using mobile phones when driving.  I mean do they check your phone to see if it was in use or need they only see the phone held at your ear ?  How do they actually prove you were using the phone while driving ?  
Personally, I use the hands free earphone attachment and it's just a Godsend.


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## demoivre (11 Aug 2008)

The offence is holding a mobile phone and does not require the driver to be making or receiving a call but merely holding the phone. _Hold_ in relation to a mobile phone, means holding the phone by hand or supporting it or cradling it with another part of the body.


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## Guest106 (11 Aug 2008)

Tks DeMoivre, that fairly explicit alright.   Just one further question.....does that apply even if the phone was switched or disabled, ie incapable of use ?


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## RedDevil (13 Aug 2008)

“mobile phone” means a portable communication device, other than a two-way radio, with which a person is capable of making or receiving a call or performing an interactive communication function,

"Incapable of use" would appear to provide a defence


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## RS2K (14 Aug 2008)

1John said:


> Tks DeMoivre, that fairly explicit alright.   Just one further question.....does that apply even if the phone was switched or disabled, ie incapable of use ?



If the phone was turned off or disabled why would anyone have it up to their ear?


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## Guest106 (14 Aug 2008)

demoivre said:


> The offence is holding a mobile phone and does not require the driver to be making or receiving a call but merely holding the phone. _Hold_ in relation to a mobile phone, means holding the phone by hand or supporting it or cradling it with another part of the body.



'Merely holding the phone' is what DeMoivre has said which causes me to think that there must be many interesting situations where the driver had the phone in hand but wasn't actually using it to make a call.
It's not a perfect world and there's a lot of variables in daily life that have great potential to attract trouble. 
For Example -  when in motion, if I pick up the phone to put in my pocket so I won't forget it (and heaven help me if I dare to actually look at the dial to see if it's switched on) technically I am committing an offence if detected.  I think there would be many tough calls on the part of judges when giving decisions in some of these cases.
I am fully supportive of compliance with the law and just wondering how it's rolling out in terms of implementation.


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## aircobra19 (14 Aug 2008)

They'll apply the law inconsistently and at random. 

The idea is to leave the phone in your pocket/bag. You should have no reason to look or touch it.


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## aoc (14 Aug 2008)

Just wondering then - my sister has an awful habit of putting her phone on loudspeaker between the front of her shoulder and the seat belt..... would this still be classified as an offense??? she did previously get caught on the phone ------- its baffles me there are so many hands free kits etc and they don't cost a fortune... if you can afford a car surely you can afford a blue tooth headset  or similar????


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## RS2K (14 Aug 2008)

aoc said:


> Just wondering then - my sister has an awful habit of putting her phone on loudspeaker between the front of her shoulder and the seat belt..... would this still be classified as an offense??? she did previously get caught on the phone ------- its baffles me there are so many hands free kits etc and they don't cost a fortune... if you can afford a car surely you can afford a blue tooth headset  or similar????



I'd imagine that would be an offense ok. I've seen people driving whilst talking into a mobile on loudspeaker held at armslength in front of them. Comical tbh.


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## aircobra19 (14 Aug 2008)

aoc said:


> Just wondering then - my sister has an awful habit of putting her phone on loudspeaker between the front of her shoulder and the seat belt..... would this still be classified as an offense??? she did previously get caught on the phone ------- its baffles me there are so many hands free kits etc and they don't cost a fortune... if you can afford a car surely you can afford a blue tooth headset or similar????


 
Yes its an offence. 

Have you asked her?

I'll admit in the past that when sitting in traffic I've used the speakerphone mode on my phone, and put it beside the handbrake. TBH I'm not on the phone enough to make it worth while. So I just don't use it, or pull in if I have to.


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## demoivre (14 Aug 2008)

aircobra19 said:


> Yes its an offence.
> 
> Have you asked her?
> 
> I'll admit in the past that when sitting in traffic I've used the speakerphone mode on my phone, and put it beside the handbrake. TBH I'm not on the phone enough to make it worth while. So I just don't use it, or pull in if I have to.



I answer the phone whenever it rings while I'm driving. I don't have a handsfree kit or bluetooth but I am still fully compliant with the mobile phone law !


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## RS2K (14 Aug 2008)

demoivre said:


> I answer the phone whenever it rings while I'm driving. I don't have a handsfree kit or bluetooth but I am still fully compliant with the mobile phone law !



How do you manage that?


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## Speedwell (14 Aug 2008)

Yes, I am curious to know myself


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## demoivre (14 Aug 2008)

RS2K said:


> How do you manage that?



With ease ..... Phone stands neatly leaning away from me in one of several compartments ( for change, drinks etc ) in my motor . Phone rings, I press the answer button and then press speaker and away I go ....no need for me to hold the phone in any way or cradle it with my knees or shoulder etc. which would be breaking the law. Bizarrely I could probably text on the phone, because it sits so snuggly in the compartment and wouldn't move around when I hit the buttons, while driving and still be compliant with the mobile phone law! Might not be compliant with the careless driving law though and in any case for safety reasons I never text or make a call while driving !


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## Guest106 (14 Aug 2008)

Help....I thought Demoivre had clarified things nicely but now I'm just totally confused with some of the responses which followed:

1 > If I'm pressing the phone buttons etc how could that be regarded as not using a mobile phone whilst driving ? (See Demoivre's 03.56pm post today)
2 > If I'm holding a mobile phone that's incapable of use (e.g. it's broken or  the battery is flat, or there's no SIM card for whatever reason) could I be convicted of using the phone which could not possibly operate as a phone ?
3 >  Even the explanation about pulling in to answer the phone lacks credibility because of the time factor.  It's hardly likely that one would be in a position to pull in on the instant of a call.  More likely that one would answer and request caller's indulgence while a pull-in spot was found. etc....all of which in the real world means  you were using the phone....and that's the offence. 
4 > If the Guard merely saw the phone in hand, was that sufficient to create the offence ?
5 >  Has anyone had any experience on the sharp end before the courts or even been present when such a case was processed.....what evidence precisely was presented ?  In giving such evidence, did the Guard say " I saw the phone in his hand...to his ear.....saw him talking.....or how precisely in open court is the judge convinced of the commission of that particular offence ?

I know it's 2 pen/points on first offence detection and payment of the fixed rate of E60 followed by 4 pen/points plus up to E2000 fine if the facts the Garda facts are contested.
So to the question:..... what are the Garde facts that MUST be present before one can be properly convicted in a court of law ?

Has anybody got any idea of the statistics on this ?  I don't recall seeing any such  since this legislation was introduced.


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## RS2K (14 Aug 2008)

What's your angle on this OP? Seems you have some sort of agenda.

If a case goes to court and a Garda says "I saw accused with phone to his ear" I would have imagined there's a good chance  of a conviction. No case is ever 100% certain to guarantee a conviction however.

I ask again why would anyone have a non functioning phone to their ear?

Texting whilst driving is an offence. Carkit or otherwise.

You are allowed to make and take handsfree calls whilst driving. You are not however allowed to dial numbers manually. Many car kits allow for voice dialling and call answering.


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## aircobra19 (15 Aug 2008)

1John said:


> Help....I thought Demoivre had clarified things nicely but now I'm just totally confused with some of the responses which followed:.


 
You're making something thats very simple complicated. Why I have no idea. 



1John said:


> 1 > If I'm pressing the phone buttons etc how could that be regarded as not using a mobile phone whilst driving ? (See Demoivre's 03.56pm post today):.


 
The law says holding. End of. 



1John said:


> 2 > If I'm holding a mobile phone that's incapable of use (e.g. it's broken or the battery is flat, or there's no SIM card for whatever reason) could I be convicted of using the phone which could not possibly operate as a phone ?


 
The law says holding. End of. 



1John said:


> 3 > Even the explanation about pulling in to answer the phone lacks credibility because of the time factor. It's hardly likely that one would be in a position to pull in on the instant of a call. More likely that one would answer and request caller's indulgence while a pull-in spot was found. etc....all of which in the real world means you were using the phone....and that's the offence.


 
Its just common sense to know that you don't have to answer every call immediately, you can pull over, stop. Then ring back the person who rang.



1John said:


> 4 > If the Guard merely saw the phone in hand, was that sufficient to create the offence ?


 
Yes. The law says holding. End of. 



1John said:


> 5 > Has anyone had any experience on the sharp end before the courts or even been present when such a case was processed.....what evidence precisely was presented ? In giving such evidence, did the Guard say " I saw the phone in his hand...to his ear.....saw him talking.....or how precisely in open court is the judge convinced of the commission of that particular offence ?
> 
> 
> I know it's 2 pen/points on first offence detection and payment of the fixed rate of E60 followed by 4 pen/points plus up to E2000 fine if the facts the Garda facts are contested.
> ...


 
No idea. 

Personally I think all Garda cars should have camera and a charge of dangerous driving should be obvious then. None of this nonesense of holding a phone. The law is intended to stop people driving like a muppet on the phone.


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## ButtermilkJa (15 Aug 2008)

Well, maybe to clarify things a bit...

My friend is a Garda and she says that they don't need any evidence other than her own sight of the offence. In other words, they don't need to double back and catch you before you put the phone down. Or they don't need to check it to see when the last call was. They just need to see you once and that's enough for them to pull you over and convict you.

On a side note, what about smoking while driving? As far as I'm concerned far more dangerous, as you're not likely to drop a burning cigarette quickly if you suddenly find yourself in danger. Whereas a phone you can safely drop to your lap, or the floor, if required.

Why allow smoking while driving?


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## aircobra19 (15 Aug 2008)

To my mind it doesn't matter what you are doing once you can drive properly. However its obvious that some people can't, so they should be simply charged with dangerous driving because of their driving. Not because they took a call sitting in traffic queue.


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## RS2K (15 Aug 2008)

ButtermilkJa said:


> Well, maybe to clarify things a bit...
> 
> My friend is a Garda and she says that they don't need any evidence other than her own sight of the offence. In other words, they don't need to double back and catch you before you put the phone down. Or they don't need to check it to see when the last call was. They just need to see you once and that's enough for them to pull you over and convict you.
> 
> ...



I agree, as you need both hands and full concentration to drive properly. 

The same logic applies to map/newspaper reading, application of makeup, shaving, and eating btw.


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## aircobra19 (15 Aug 2008)

RS2K said:


> I agree, as you need both hands and full concentration to drive properly.
> 
> The same logic applies to map/newspaper reading, application of makeup, shaving, and eating btw.


 
By that logic you shouldn't have a radio/cd player in the car either.


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## Graham_07 (15 Aug 2008)

RS2K said:


> The same logic applies to map/newspaper reading, application of makeup, shaving, and eating btw.


 
So we might expect picking one's nose to be come a 2 penalty pointer perhaps in the future


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## aircobra19 (15 Aug 2008)

I think it should be judge on your driving solely. In my experience someone engrossed on the phone will be consistently driving badly as it will be a habit they are used to.


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## RS2K (15 Aug 2008)

aircobra19 said:


> By that logic you shouldn't have a radio/cd player in the car either.



Some better specced. cars have column mounted remote controls to change volume, stations, etc. Really clever units use voice control. No need to take your eyes of the road, or hands off the wheel.


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## aircobra19 (15 Aug 2008)

But probably most don't. 

How about the gear shift, or the heater controls?


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## RS2K (15 Aug 2008)

aircobra19 said:


> But probably most don't.
> 
> How about the gear shift, or the heater controls?



Some reasonably modest cars do infact. Ireland's best selling car has satellite stereo controls and some models had voice control too. 

The point I'm trying to make (and that some are missing) is that the safest driving requires that your eyes keep looking where they should be looking  and that both hands stay on the wheel/controls as much as possible.

Smoking is dangerous surely. Imagine dropping a lighted cigarette into your lap?


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## aircobra19 (15 Aug 2008)

I don't see any difference between any of these and holding a phone. Its just a token gesture to look as if something is been done about driving dangerously. The real problem is lack of Garda, and enforcement.


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## Guest106 (16 Aug 2008)

Aircobra19
Your Post 17 is very noteworthy and followed Demoivre's similar position.
I accept the 'holding the phone' legal requirement now and was not clear on that position previously.  Now today while I was pondering just what sort of a numbscull I actually have become, I took part in a group conversation about this topic and asked all 5 present as to what the precise offence was as covereed by the legislation. 

I asked them:  "Is the offence actually using the phone or is it merely holding the phone" ?  Four of them plumped for the former and the fifth thought that both positions must be covered otherwise "it would be daft".   The motoring public, imho, in very large measure are blissfully unaware of the distinction.

I am now also aware that up to the end of April this year, in excess of 35,000 persons were prosecuted for phone/driving offences.

One could engage in quite a bit of conjecture about how the defence lawyers are contesting and will contest some of these cases in the future.
I imagine most are dealt with on a guilty plea so there is no contest.

But just consider Drunk Driving.  It took a long time to get that legislation right if right it be at this time.
It was struck down time and time again by individuals who challenged   (a) the wording of legislation (b) invasion of rights (c) delay in proceedings   (d) denial of options (e) lack of due process etc etc and a myriad of other devices to obstruct the intention of the legislature to legislate effectively in that area of activity.  Sometimes hundreds of pending cases were wiped out because of a successful challenge to an instance of Garda enforcement.  Lawyers loved those cases because a successful outcome endeared them to some of their wealthiest clients for evermore.

I was just wondering as a matter of ordinary personal interest how the enforcement on the phone front was going hence my OP here.
It has been suggested in a very early post here that I may have an agenda.
I am happy to say (with apologies to you -Aircobra19) that I have no agenda.....end of.


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## aircobra19 (16 Aug 2008)

Its not a complicated law. Your making too much of it.

It designed (I assume) to make it easier to catch more people, in order to stop people using their phones. All I'll say is don't scratch your ear either as that could look like your using a phone!


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## Guest106 (17 Aug 2008)

Maybe so, time will tell.  
I have an idea that when the coast to coast CCTV Road Traffic system kicks in and penalty points begin to tot up like a convenience store register as they inevitably will for a lot of our eager beaver drivers, that we will see some robust defences because just like the Drunk Dvg situation, being banned would pose very big difficulties for a lot of our long distance commuters. There will be an awful lot more people heading for 'driving ban' land and very quickly too when the cameras get going, lots of rude awakenings there to be sure.  
A lot of things, imo, in Garda evidence may be open to challenge, e.g. lighting conditions at the time, line of vision, distance at the time of sighting, was the vehicle moving ?, was it raining ? how credible would it be that a Guard could swear he/she saw a small handheld phone (palm of the hand?) in a moving vehicle's interior, there's lots to be considered there and I feel there will be challenges aplenty.  I wouldn't be at all surprised to see a small industry spring up down the line around lawyers skilled in the minutiae of Road Traffic law  in response to phone use prosecutions.
I'm just interested in how the law is working or not and inviting people to relate their experiences thats all.


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## bee(nice) (11 Sep 2008)

The law with regard to driving and mobile phones is that it is an offence to be driving an MPV while "HOLDING" a mobile phone. See the wording of Section 3 Road Traffic Act 2006

In a prosecution in court it is not acceptable for a the prosecution to state that a person was seen "going down the road in a car". Evidence must be given the person was "driving" and that the car was a " mechanically propelled vehicle".

Likewise is would not be good evidence if the prosecution put forward the evidence that a person was seen "USING" a mobile phone. The offence is only created when evidence is heard that a person was seen "HOLDING" a mobile phone.

If a Garda said in evidence that they saw a person "USING" a mobile phone and did not state that they saw a person "HOLDING" a mobile phone and was then asked if that was "The States" evidence, then the defence could seek a direction with regard to the evidence that was given and point out to the court that "there was no evidence given to sustain the charge before the court as the offence alleged is one of "HOLDING" a mobile phone.

I have no doubt that the Judge would grant a favourable direction and dismiss the case on its merits. 

It is common place for Gardai to state that they saw a person "USING" a mobile phone and many Gardai are not aware of the subtle but legal difference that is the difference between a criminal offence and no offence.

It is not a criminal offence to "USE" a mobile phone while driving. If one is using a "hands free kit", "Blue Tooth" or if the phone is on the passenger seat or even on the dash in full view but on "loudspeaker" even if the driver admits to speaking on the phone while driving. 

In such circumstances, and only depending on the circumstances a driver may have a case to answer in relation to an allegation of careless driving but only if there is evidence to support an allegation of careless driving. I would submit that speaking on a phone would be no different to speaking to a rear seat passenger or indeed any passenger and merely "speaking" while driving in itself could not be considered careless driving.

I do feel that the law to deter people using mobile phones is a good one as in some cases it is certainly dangerous to do so. 

However one could argue that smoking while driving is potentially as dangerous in certain circumstances. The whole motivation of the mobile phone law is that using a mobile phone while driving causes a distraction to the driver. it could be argued that searching pockets for a packet of cigarettes and then attempting to get one from the packet and then lighting a cigarette is equally as distracting and every bit as potentially dangerous. 

I feel that the law should allow for the offence to be created only if the driving while holding a mobile phone is accompanied by evidence that the holding of the phone in some way unfavourably impaired the control the driver had over the vehicle at the time of observation.


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## rmelly (11 Sep 2008)

Graham_07 said:


> So we might expect picking one's nose to be come a 2 penalty pointer perhaps in the future


 
Rising to 4 points, depending on what you do with the 'pickings'?


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## sandrat (12 Sep 2008)

i know someone who got a summons for having the phone in his pocket. Guard had him stopped at side of road and he took phone out of his pocket cos it rang, didnt answer it and the guard gave him a fine he forgot to pay it and so has been summoned


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## starlite68 (12 Sep 2008)

i find it strange that the gurads themselves are allowed to use mobile phones while driveing...surely they would be as likely to have an accident as any member of the public!


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## Guest106 (13 Sep 2008)

Bee-nice
Great post and just the kind of detail I was trying to elicit in the OP.
I tend toward the view that prosecuted people who chose to plead 'not guilty' will pose lots of problems for the law enforcers (Gdai & Courts).
I have no issue with strong clear evidence but it can not be acceptable that Guards can simply swear that they saw you holding a mobile phone when there is no clear evidence that a mobile phone was being held.

Like a dark or coloured 1" blob appearing above the index finger of a driver in a moving car can be sworn to by a Guard to be a phone ?  Really ?

In practice, most people in an unguarded moment when stopped  admit straight away to using the phone so the case is basically proven there and then.
But suppose you get a summons in the post 6 months later how could one respond to that in terms of deciding culpability ?


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