# Phone in car - must go to court



## cronley (2 Oct 2014)

http://www.irishstatutebook.ie/pdf/2011/en.act.2011.0003.pdf
Above is link to Communications (Retention of Data ) Act 2011
I have been charged with holding mobile phone while driving – which I was not doing – the Garda has made a mistake. I have exhausted all Garda channels to get this charge cancelled – to no avail. I have decided to go to court to plead my innocence – matter of principle for me.
As court evidence, I sought from eMobile that there was no outgoing or incoming activity on my phone between 4 pm & 5 pm on 15/07/2014. I spoke to a very senior manager in eMobile. He has no problem confirming no outgoing activity, but he says the above act prevents him from confirming no incoming activity. He admits that Section 5 (a) Page 6, allows him to access my incoming data, without a Court Order, but he says Section 6 Page 6, prevents him from disclosing the outcome to me, without a Court Order. He says all phone companies have got expert legal advice on this & they all have the same policy – that Section 6 prevents them from disclosing incoming info to A/C holder, without a Court Order. He says the Act is absurd & needs to be amended, but they are stuck with it.
As a non legal person, I cannot see how the legal experts get this interpretation from Section 6. Section 5 sets out the circumstances, where access is allowed. Section 5 (b) allows access following a “Disclosure Request”. Section 6, then goes on to set out, who can make a Disclosure Request. I cannot see any linkage between Section 5 (a) and Section 6.
Has anyone else come across this problem. Any views on options, apart from getting a Court Order.


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## PatMacG (2 Oct 2014)

Incoming or outgoing calls not withstanding, who can prove you weren't reading texts that came in earlier, consulting the gps, selecting different tunes, looking at pictures, etc?


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## Palerider (2 Oct 2014)

I was followed after I passed a Garda car exiting into a main road as I was passing, he came after me siren, lights etc, told me I was on my phone, I was not, told him again and again, he asked me would I swear to that, I did at the side of the road, ridiculous, after he had gone and a few miles on Wondering what had caused that drama my right arm drifted up, elbow on side door and hand against the side of my head, there you have it. That is what he saw....I don't do it anymore, my advice was that the Garda Sergeant in my case would have been believed had he written it up, he was wrong but I would have lost..

The offence is holding the phone, you do not have to be using it, lot of people don't know that, I see where you are coming from but good luck convincing the Judge.


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## rosemartin (2 Oct 2014)

just tell the truth bring your print out,  not many challenge this , ask the Garda what he saw,  when in court,  it has to be beyond a reasonable doubt, judge has to be sure before he can convict,  i think you will be ok


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## Branz (2 Oct 2014)

rosemartin said:


> just tell the truth bring your print out,  not many challenge this , ask the Garda what he saw,  when in court,  it has to be beyond a reasonable doubt, judge has to be sure before he can convict,  i think you will be ok



Don't share your optimism here, based on experience, from 1981.
The Garda perjured himself, but my solicitor, who now sits on Supreme Court, just shrugged and said, the system wont work if they don't believe the Guards.

On a more practical note, how can you prove that you didn't have another fone while perhaps engaged in "extraterrestrial" activities.

Perhaps the issue with the incoming data is the privacy rights of the caller are being breached


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## cronley (2 Oct 2014)

ircoha said:


> Don't share your optimism here, based on experience, from 1981.
> The Garda perjured himself, but my solicitor, who now sits on Supreme Court, just shrugged and said, the system wont work if they don't believe the Guards.
> 
> On a more practical note, how can you prove that you didn't have another fone while perhaps engaged in "extraterrestrial" activities.
> ...


 
Just assume, take my word - I didnt have another phone. How do I prove that - I cant prove it. How do you prove you didnt have another phone - it is being asked to do the impossible. Why is the onus of proof on me, to prove my innocence - the Garda does not seem to need to provide any evidence to support his position.

Re incoming data & privacy rights of caller - there is no incoming activity - so, no caller rights being breached. The eMobile manager says his legal advice, based on Section 6, is that he is prevented from confirming NO ACTIVITY.


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## PatMacG (3 Oct 2014)

rosemartin said:


> … when in court,  it has to be beyond a reasonable doubt, ...


 Not when the witness is a Guard, where you must disprove his testimony.


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## Guns N Roses (3 Oct 2014)

Palerider said:


> The offence is holding the phone, you do not have to be using it, lot of people don't know that,



Does that mean I can be charged with using a mobile phone while driving even when I'm only using it to change songs on my iPhone which is pugged into my car audio system?


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## cronley (3 Oct 2014)

PatMacG said:


> Not when the witness is a Guard, where you must disprove his testimony.


 
How do you disprove his testimony.


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## serotoninsid (3 Oct 2014)

cronley said:


> How do you disprove his testimony.


The justification for dashcams becomes more plausible the way things are going...although in this case, as well as a cam pointed forwards you'd need another one pointed back towards the driver...


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## Palerider (3 Oct 2014)

Guns N Roses said:


> Does that mean I can be charged with using a mobile phone while driving even when I'm only using it to change songs on my iPhone which is pugged into my car audio system?



Yes it does.


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## zlatan (3 Oct 2014)

Effectively the offence is looking like you're using a phone. They're watching for a hand held up to the head, however using a phone is one of the less frequent reasons people move a hand to their head so there's going to be mistakes. 

In my view to reduce errors gardai should be given guidelines as to when they can detect this, e.g. person needs to be observed for a couple seconds. A car flashing by another car only gives a garda a fraction of second to make a decision.

In theory if the Garda's memory is reliable in court - and the judge gives enough time to explain - the garda would have to say he believed a call was in place, i.e. the phone/hand was held to the head. You're not texting, you're not dialling, etc.. So the call evidence may well be useful even though the offence is simply "holding" the phone. 

A judge may not care that you can only get outgoing call records - you explain how you've tried and the gardai could get the complete set so you could simply say you hoped the garda would have them with him.


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## cronley (3 Oct 2014)

I agree with Zlatan - that confirmation from eMobile of no activity on my phone, should be useful evidence in my case.
Has anyone succeeded in getting info on incoming activity, or confirmation of no incoming activity, from their phone company.


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## serotoninsid (3 Oct 2014)

If the phone was a 'dumb' phone with little in the way of possibilities to access i-net, web based email, gps or music, then i'd imagine that should strengthen his pleading of the case.  Also if no txt's received around that time..


Dashcams are pretty cheap now...maybe the way to go in future. Speaking to a taxi driver recently and he has multiple cams in-car to cover all angles and in that way, be in a position to disprove any exaggerated claims made by gardai, customers, etc.


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## ashambles (3 Oct 2014)

cronley said:


> I agree with Zlatan - that confirmation from eMobile of no activity on my phone, should be useful evidence in my case.
> Has anyone succeeded in getting info on incoming activity, or confirmation of no incoming activity, from their phone company.



I know of a similar case with o2 where they also could only provide outgoing calls. Privacy rules also used as the reason. I'm not too sure but I think the Garda didn't turn up in court so in the end the information didn't matter.

I think they've two ways they give information, basically your billing info, or a full scale garda warrant to get all data which would involve getting information from other operators. They probably could legally give something inbetween but I think the reason they don't is they know they'd be dragged into court cases such as this.

However I have read one or two cases of people using records to help to successfully defend themselves, probably outgoing calls only. I think the judges are more impressed by the effort to prove innocence than the evidence. Also the gardai will have no physical proof so anything on your side is a help.


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