# pending court case re: accused of driving while talking on a phone



## steve1234 (18 Nov 2008)

Hi 
ive got a court case comming up soon.
ive been accused of driving while talking on a phone. The problem is i wasent but how can i prove it. I was driving along with the window down and my arm was on the side door and i was resting my head on my hand.
When the garda stopped me i totally denied it and was in shock - i though i did something else like run a red light or something. anyways i asked him to check my phone to see if there were any incomming or out going calls or texts and he wouldnt. Then he said you dont have to be actually making any calls just holding it is enough. 
Then i asked my rights - as in can i refuse to accept the ticket - he said no - "Its the cart before the horse - you have to take the ticket and not pay it then prove in court that you didnt do it"
So here i am with a pending court case.
I asked him to write down the exact time i was stopped - so i can contact my phone company to detail a list of all incomming and out going calls at the time.
What other evidence can i bring??
Can i ask to do a lie detector test- Will they have these in the court?
Also im driving on a UK licience. Im irish but used to live in the UK for 3 years. Im back living in ireland for the last 3 years.
Should i have changed my licience over to an irish one by now? Will this matter?
I would of happily paid the fine and took the points if i did it but its the princible of the whole thing. Its going to cost me alot more to take a day off work than pay the fine and Ive better things to be doing than playing space invaders while driving a car.
Thanks,
Steve


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## MrMan (18 Nov 2008)

steve1234 said:


> Hi
> ive got a court case comming up soon.
> ive been accused of driving while talking on a phone. The problem is i wasent but how can i prove it. I was driving along with the window down and my arm was on the side door and i was resting my head on my hand.
> When the garda stopped me i totally denied it and was in shock - i though i did something else like run a red light or something. anyways i asked him to check my phone to see if there were any incomming or out going calls or texts and he wouldnt. Then he said you dont have to be actually making any calls just holding it is enough.
> ...




I don't know if having your head resting on your hand while driving one handed will be the best defence, could you be done for dangerous driving instead?. Is it not a whole lot easier to swallow the bitter pill.


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## steve1234 (18 Nov 2008)

No its not easier to swallow the bitter pill and its too late for that now. 
Im sure the garda is right 95% of the time but this time he was wrong.


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## aircobra19 (18 Nov 2008)

steve1234 said:


> ....he said you dont have to be actually making any calls just holding it is enough. ...


 
The problem with this is it becomes his word against yours. I would guess that the only chance you would have is if you rarely use your phone, and hadn't made any calls/text for a long time before being stopped. I might only make 2 or 3 calls in a day for example, and 2 or 3 texts. Then you would have no reason to be holding your phone. Whereas if you use it constantly, then I'm guessing you'll have no chance.


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## MrMan (18 Nov 2008)

steve1234 said:


> No its not easier to swallow the bitter pill and its too late for that now.
> Im sure the garda is right 95% of the time but this time he was wrong.




Ok then take your chance and be ready for the very real possibility of a higher fine and increased points penalty.


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## McCrack (18 Nov 2008)

Consult with a solicitor who will liase with your mobile service provider in obtaining your phone records to assist in proving/disproving the allegation and who make representation in court on your behalf


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## MrMan (18 Nov 2008)

McCrack said:


> Consult with a solicitor who will liase with your mobile service provider in obtaining your phone records to assist in proving/disproving the allegation and who make representation in court on your behalf




But hasn't the guard already said that it doesn't matter if he was actually using the phone, he had it in his hand (as he incorrectly saw it) so phone records won't achieve anything.


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## Trent (18 Nov 2008)

Go to court and show this guy up for the idiot he obviously is. Phone records should be enough to prove your innocence if you didn't have any outgoing or incoming calls around that time. Point out the fact that he refused to check your phone effectively forcing his authority on you. Why would you be holding your phone to your head if you're not making a call?...madness! It's about time people stood up to this sort of nonsense.


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## MrMan (18 Nov 2008)

Trent said:


> Go to court and show this guy up for the idiot he obviously is. Phone records should be enough to prove your innocence if you didn't have any outgoing or incoming calls around that time. Point out the fact that he refused to check your phone effectively forcing his authority on you. Why would you be holding your phone to your head if you're not making a call?...madness! It's about time people stood up to this sort of nonsense.




I agree that if he wasn't in the wrong he shouldn't be punished but sometimes you are better off taking the lesser of two evils. The guard could argue that the op was about to make a call, he might be lucky and the guard won't turn up though which is a possibility.


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## Trent (18 Nov 2008)

MrMan said:


> ...but sometimes you are better off taking the lesser of two evils...


 

I'm not having a go, but it's this sort of attitude that's to blame for this sort of situation. If more people stood up to this sort of rubbish, then maybe the courts would take notice.


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## Vanilla (18 Nov 2008)

Well you can forget about the lie detector test anyway, although I would actually pay to hear that one in the local district court...

As others have advised, get your mobile phone records, employ a solicitor. Your solicitor will get on to the inspector handling the list the day before the court and will advise that it will be contested and that the records will be produced in court. The inspector may even agree to strike it out on that basis. If not, then the guard will give his evidence, you will give your evidence, the records will be handed in and the judge will decide on the basis of the evidence in front of her/him. 

It is not uncommon for a judge to decide there is a reasonable doubt. Of course you run the risk of losing and adding solicitors fees to a fine. And even if you win, you must still pay a solicitor their fee. Looking at it on a strictly monetary basis you may be on a loser, however I agree that sometimes it is important to stand up for what is right.


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## steve1234 (18 Nov 2008)

ok thanks - i was thinking of not employing a solicitor and just representing myself. would this be a bad idea? I never been inside a courtroom so i dont know what to expect.


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## Vanilla (18 Nov 2008)

steve1234 said:


> ok thanks - i was thinking of not employing a solicitor and just representing myself. would this be a bad idea? I never been inside a courtroom so i dont know what to expect.


 
Entirely up to yourself, you have every right to represent yourself.


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## csirl (18 Nov 2008)

steve1234 said:


> ok thanks - i was thinking of not employing a solicitor and just representing myself. would this be a bad idea? I never been inside a courtroom so i dont know what to expect.


 
Yes, would be a bad idea if you've never been inside a courtroom and its not a clear cut case from the Judges point of view.


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## ubiquitous (18 Nov 2008)

...especially as you have already outlined the details of your case, and your proposed defence, on a public website with 36,292 registered members


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## Rigoletto (18 Nov 2008)

MrMan said:


> Ok then take your chance and be ready for the very real possibility of a higher fine and increased points penalty.


 
he cant get ANY penalty points he has a uk driving licence.


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## McCrack (18 Nov 2008)

Vanilla's post (no.11) is spot on. Essentially the Judge must be satisfied beyond reasonable doubt that you were using a mobile whilst driving. If you plead not guilty the Garda must prove to the court that you were. Now all he can say is he saw you whereas you can say you werent AND have your mobile phone records as supporting evidence to this, so it's not a simple situation of your word against a members word.

That in my opinion would raise a reasonable doubt sufficient to acquit you. 

I would strongly advise you consult a solicitor, expect to pay around €300 for his/her services (to include attendance in court)

(O and merely having a mobile in your hand whilst driving is not to my knowledge an offence)


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## steve1234 (18 Nov 2008)

Ok thanks for the advice- i might just get a solicitor now. 
Looks like this is going to cost more than I thought but worth it in the end.


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## MrMan (18 Nov 2008)

Trent said:


> I'm not having a go, but it's this sort of attitude that's to blame for this sort of situation. If more people stood up to this sort of rubbish, then maybe the courts would take notice.



I understand your point, but surely there are times to take a stand and times to let sometihing go and move on. This situation represents a case where a guard made a genuine error that has little consequence to the injured party, how often do you think people come up with excuses that are actually false? I would think it was the liars that create situations like the one being discussed. I don't know if my earlier point has any relevance but the fact that the driver was driving with one hand (like a lot of us do) whilst resting his head on his other hand might not be in his favour either.


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## MrMan (18 Nov 2008)

Rigoletto said:


> he cant get ANY penalty points he has a uk driving licence.



Thats something at least, so just a higher fine and court costs are the downside then.


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## McCrack (18 Nov 2008)

You see the situation now Steve is that by not paying the fixed penalty notice you have been summonsed to the District Court to answer the allegation, where if you plead guilty you risk a criminal conviction (which is unlikely but not impossible) and a higher fine than the fixed penalty notice.

So essentially you have two choices, plead guilty and risk the above or plead not guilty and have the prosecuting Garda prove the matter to the satisfaction of the court (beyond reasonable doubt) now I've already stated what I think would happen if you were to plead not guilty and assuming you are telling the truth it's the correct thing to do.

I'm not going to state who/what i do for a living but I'm telling you here and now get professional representation, get a copy of your telephone records which your solicitor will do, go in and plead not guilty, your solicitor will cross-examine the Garda witness and present your side,
I'd bet my last rolo the Judge will find you not guilty.


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## Guest106 (18 Nov 2008)

Basically all this ground was covered in a somewhat similar thread back in Aug/Sept this year.  "Driving & Mobile Phones" I think, is what it ran under.
Well worth a look.


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## jhegarty (18 Nov 2008)

MrMan said:


> I understand your point, but surely there are times to take a stand and times to let sometihing go and move on. .





How far would you bring this. Speeding , careless driving , how about if it was shoplifting , how about a minor assault.... what crime should you start the defend yourself for ?


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## MrMan (19 Nov 2008)

jhegarty said:


> How far would you bring this. Speeding , careless driving , how about if it was shoplifting , how about a minor assault.... what crime should you start the defend yourself for ?



I like where your taking this, you seem to have totally understood my point. Look at from the guards viewpoint. He sees a man driving with one arm on the wheel and the other up to the side of his head, he stops him and caustions him, but the man said he wasn't on the phone he was merely resting his head whilst driving (some might say that was dangerous driving). Should the guard say ok sir because I never heard that excuse before or should he go with his instinct. I think the guard did the right thing because he genuinely didn't believe the offender. So in that instance if I was wronged I would be very annoyed and then after awhile I would think 'is it easier to pay €80 or should I engage a solicitor and take on that guard for my absolute minor injustice' in this case i would have taken the hit. 
Your other list of crimes would be a lot harder to misjudge by a guard and they are also criminal offences that could have jailtime so what do you think i would do?


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## jhegarty (19 Nov 2008)

MrMan said:


> I like where your taking this, you seem to have totally understood my point. Look at from the guards viewpoint. He sees a man driving with one arm on the wheel and the other up to the side of his head, he stops him and caustions him, but the man said he wasn't on the phone he was merely resting his head whilst driving (some might say that was dangerous driving). Should the guard say ok sir because I never heard that excuse before or should he go with his instinct. I think the guard did the right thing because he genuinely didn't believe the offender. So in that instance if I was wronged I would be very annoyed and then after awhile I would think 'is it easier to pay €80 or should I engage a solicitor and take on that guard for my absolute minor injustice' in this case i would have taken the hit.
> Your other list of crimes would be a lot harder to misjudge by a guard and they are also criminal offences that could have jailtime so what do you think i would do?




The guard will have to stand up in court and testify that he saw the defendant with a mobile phone in his hand (or the case gets thrown out). If he will lie about that then why won't he lie about the others ?


The law is quite clear , unless the guard sees a phone there is no crime. He might have had one is not enough.


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## Chocks away (19 Nov 2008)

The OP said it was a matter of principle? How does that measure up to his having an English licence for three years in this country. Great craic for getting out of speeding/toll situations.


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## Kate10 (19 Nov 2008)

MrMan I disagree with you.

Assuming what the OP is saying is correct, then the guard did not see a mobile phone in his hand.  The guard is not entitled to assume or guess that he was holding a phone, and charge him with an offense.  The guard was out of line, and should not have charged him.


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## jhegarty (19 Nov 2008)

Chocks away said:


> The OP said it was a matter of principle? How does that measure up to his having an English licence for three years in this country. Great craic for getting out of speeding/toll situations.




You are no longer required to change your license. He is 100% legal to keep it.


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## Mpsox (19 Nov 2008)

steve1234 said:


> Hi
> I was driving along with the window down and my arm was on the side door and i was resting my head on my hand.
> Thanks,
> Steve


 
Perhaps the real lesson to be learnt here is that you shouldn't be driving around with one hand on the steering wheel and resting your head on your other hand. It's not exactly the safest method of driving!!!!!!!


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## Guest106 (19 Nov 2008)

Seems to me there's smoke and mirrors aplenty in this.
Simply stated this is the position.
There will be no conviction in court unless the Garda can state on oath that he saw you with the phone "in your hand".  That's a must, evidentially.
Going on from there, the Judge must be satisfied that the observation (i.e. line of sight,  clarity, physical position of the guard, is such as to make the sighting credible.  Where there is no admission as in your case then all the proof must be adduced by the prosecution.
Based on your description and assuming that you have done so accurately, then there is not a snowball's chance in hell of you being convicted.
My position were I to be in your shoes would be this:
(a) if I was handling the phone evenif not 'using' it , I would plead and nget it over with 
(b) if I was not handling the phone, I'd take it to Strasbourg.


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## Chocks away (19 Nov 2008)

jhegarty said:


> You are no longer required to change your license. He is 100% legal to keep it.


I thought it was a requirement to have a (home) licence in place for insurance purposes. If I'm wrong, apologies. But he still gets away with Eflow?


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## jhegarty (19 Nov 2008)

Chocks away said:


> I thought it was a requirement to have a (home) licence in place for insurance purposes. If I'm wrong, apologies. But he still gets away with Eflow?



No , a full EU license is fine anywhere in the EU. Eflow is down to the car reg, not your license.


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## MrMan (19 Nov 2008)

jhegarty said:


> The guard will have to stand up in court and testify that he saw the defendant with a mobile phone in his hand (or the case gets thrown out). If he will lie about that then why won't he lie about the others ?
> 
> 
> The law is quite clear , unless the guard sees a phone there is no crime. He might have had one is not enough.



that means that you are calling the guard a liar as it stands, if the guard believes that he is telling the truth then it is a bit much to question his integrity.


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## MrMan (19 Nov 2008)

Kate10 said:


> MrMan I disagree with you.
> 
> Assuming what the OP is saying is correct, then the guard did not see a mobile phone in his hand.  The guard is not entitled to assume or guess that he was holding a phone, and charge him with an offense.  The guard was out of line, and should not have charged him.



The guard wasn't out of line if he believes what he thinks he saw, it is credible for him to have thought to have seen a man holding a phone to his ear because how many of us simply drive whilst resting our head in our hands?


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## jhegarty (19 Nov 2008)

MrMan said:


> that means that you are calling the guard a liar as it stands, if the guard believes that he is telling the truth then it is a bit much to question his integrity.



he guard did not see (see not assume , or guess, or looked like) a mobile phone then he will be telling a lie on the stand...


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## MrMan (19 Nov 2008)

jhegarty said:


> he guard did not see (see not assume , or guess, or looked like) a mobile phone then he will be telling a lie on the stand...



I agree that we are taking the OP's word on this but even so, if he believes 100% that he has seen what he says he has seen, he won't be making a guess or an assumption he will be making a human error like many of us make every day. If he is forthright in his decision to stand over what he (thinks) has seen then it is OP versus the guard, and I just think that a guard would be given more credit in this instance by a judge. I'm just making the logical point that just because the op says the guard was wrong doesn't make the guard believe that he is wrong.


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## Latrade (19 Nov 2008)

MrMan said:


> I agree that we are taking the OP's word on this but even so, if he believes 100% that he has seen what he says he has seen, he won't be making a guess or an assumption he will be making a human error like many of us make every day. If he is forthright in his decision to stand over what he (thinks) has seen then it is OP versus the guard, and I just think that a guard would be given more credit in this instance by a judge. I'm just making the logical point that just because the op says the guard was wrong doesn't make the guard believe that he is wrong.


 
So based on this logic a person should admit a charge they are not guilty of because it's morally wrong and insulting to the guard because they made a mistake?

It doesn't matter how minor the charge or penalty, if you're not guilty of it you're not guilty of it. The guard has to have stronger evidence than "they think they might have, possibly, maybe, well it kinda looked like they did were" using a phone before he wrote the ticket.

If driving with and arm on the window and resting head is dangerous driving then the guard should have cited him for that offence and not one that they were in no position to prove.

We don't know the position of the OP, maybe he has to drive for work, maybe his employer has a policy in place on not using a mobile phone while driving. If he accepts the charge, when he didn't do it, this could open up a can of worms with his employer. 

I can't understand any possible defence for the guard involved, honest mistake or not, if he wasn't sure and didn't have the proof he shouldn't have written the ticket.


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## MrMan (19 Nov 2008)

Latrade said:


> So based on this logic a person should admit a charge they are not guilty of because it's morally wrong and insulting to the guard because they made a mistake?
> 
> It doesn't matter how minor the charge or penalty, if you're not guilty of it you're not guilty of it. The guard has to have stronger evidence than "they think they might have, possibly, maybe, well it kinda looked like they did were" using a phone before he wrote the ticket.
> 
> ...




What I have clearly said already is that when the punishment is so little (€80 fine) and the hassle thats entailed in going to court (sure his employer will delighted with that and its a days pay lost) plus the possiibility of losing therefore increasing the fine and incurring legal fees it will mean that if he wins it will purely be a moral victory and at the end of the day what good is it to you. 

Your other points re morally wrong and insulting are off the point and losing the gist of what I said, I don't care if it upsets the guard if it goes to court, what I said is that there is a very real possibility that the guard believes he is right and did see him with a phone to his ear and therefore it is the judges call as to who he believes. 

I look at it logically and not emotionally because I am not involved and as I see it there are two outcomes
1. OP wins his case - no costs (presumably), no fine to pay, but down a days pay or at least a half days pay.
2. OP loses fine is doubled, pay solicitor fees, loses day or half days pay.

Weighing up the odds and outcomes my reaction would be to bite the bullet and pay over the fine especially when there are no points attached to his licence.


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## TreeTiger (19 Nov 2008)

MrMan said:


> The guard wasn't out of line if he believes what he thinks he saw, it is credible for him to have thought to have seen a man holding a phone to his ear ...



It might have helped if he took the OP up on his offer, no?



steve1234 said:


> ... i asked him to check my phone to see if there were any incomming or out going calls or texts and he wouldnt.





MrMan said:


> ... because how many of us simply drive whilst resting our head in our hands?


By the way the OP said he was resting his head on a hand (singular).  I see this quite regularly, particularly in evening traffic!


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## sparkeee (19 Nov 2008)

reminds me of the tale of the fella and the sheep,his defence was he was just going to the toilet and the sheep backed onto him.


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## MrMan (19 Nov 2008)

> It might have helped if he took the OP up on his offer, no?



Except you don't need to be actually making or taking a call for it to be an offence, it's having it in your hand that counts.



> By the way the OP said he was resting his head on a hand (singular). I see this quite regularly, particularly in evening traffic!



My mistake I meant hand, not quite obeying the rules of the road no matter how many people do it, but thats off point anyways.


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## TreeTiger (19 Nov 2008)

McCrack said:


> (O and merely having a mobile in your hand whilst driving is not to my knowledge an offence)





MrMan said:


> Except you don't need to be actually making or taking a call for it to be an offence, it's having it in your hand that counts.



It's your word against his 

Does anyone know for sure if it's an offence to hold a phone while driving?


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## MrMan (19 Nov 2008)

TreeTiger said:


> It's your word against his
> 
> Does anyone know for sure if it's an offence to hold a phone while driving?



I'll take my chances on this one seeing as there is no penalty for being found in the wrong!


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## TreeTiger (19 Nov 2008)

Answered my own question (thank you Google!) - 
"The offence of driving while holding a mobile phone was brought within the fixed charge and penalty point system in September 2006."

So that could certainly make things more difficult for the OP.


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## Marathon Man (20 Nov 2008)

In this case the issue of whether the OP had a phone in his hand or not is, I believe academic.  As other posters have pointed out, driving with one hand on the wheel, while resting one's head on the other hand is clearly idiotic.  

I'm not a legal professional, but I understand that the judge has discretion to impose a charge for careless driving (5 points) if the OP testifies that he was driving in the manner he has stated.  

OK, the OP feels aggrieved that they're being hammered for something they claim they weren't doing but their defense is that they were doing something else that they shouldn't have doing either. 

I reckon the OP is doing well not to be charged with careless driving and risks being convicted with that if they go to court.  

Pay the fine, take the two points and keep both hands on the wheel in future....Oh! ....and do some neck exercises to keep your head up!  No sympathy!


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## Guest106 (20 Nov 2008)

If we are to be of any assistance to OP here, we must address facts rather than conjecture.   All too often speculation permeates some of these responses.

Consider the judges position.  The Judge is looking looking at the document copy on which the alleged offence is laid forth and listening to the evidence from the Garda and you in an effort to determine the appropriateness of that specific charge.  Judges may on occasion hear evidence that would be more relevant to entirely charges *but* is excluded from that consideration if those offences are not specified in the summons.

FACT: A defendant cannot end up convicted of something he was not summoned to court for.  The conviction must relate directly to the charge on which brought before the court.  To be summoned to court for 'handling a mobile phone' will not result in a conviction for careless or dangerous unless there is an accompanying summons of that designation.

Could OP indicate briefly but precisely what the summons alleges ?
Are there several summonses and if so in brief what is alleged in each ?

IMO .....nobody should decide to plead to something they did not do unless this was being done to escape the death penalty should that predicament be their misfortune.


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## aircobra19 (20 Nov 2008)

Marathon Man said:


> In this case the issue of whether the OP had a phone in his hand or not is, I believe academic. As other posters have pointed out, driving with one hand on the wheel, while resting one's head on the other hand is clearly idiotic. ....


 
I don't think anyone actually did say thay, other than its very common. I reckon it would be very a big stretch to claim that driving with one hand on the wheel is automatically dangerous driving. Its impossible to drive with your hands on the wheel all of the time. Theres a huge range of actions in the car that require you to take a hand off the wheel, gear changes, controlling the windows, ventilation radio, theres no law against scratching you head etc. People are human not robots. 



Marathon Man said:


> Pay the fine, take the two points and keep both hands on the wheel in future....Oh! ....and do some neck exercises to keep your head up! No sympathy!


 
Your making this very black and white, and I don't think it is. 

That said I think I'd just pay the fine. Lesser of two evils.


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## car (20 Nov 2008)

Just a thought.   How does the judge know the phone records the defendant brings in to court in his defence are for the phone he was is alleged to have been using?

And if the judge doesnt know, are they back to gardas word against theirs?


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## Marathon Man (20 Nov 2008)

aircobra19 said:


> Its impossible to drive with your hands on the wheel all of the time. Theres a huge range of actions in the car that require you to take a hand off the wheel, gear changes, controlling the windows, ventilation radio, theres no law against scratching you head etc. People are human not robots.


 
Agreed. However there is a huge difference between any of the actions you mention and what the OP say they were doing. The OP "was driving along with the window down and my arm was on the side door and i was resting my head on my hand." 

Try simulating this as you read and also estimate your reaction time. I reckon that reaction times from such a position would be seriously impaired. 



aircobra19 said:


> That said I think I'd just pay the fine. Lesser of two evils.


 I think this is the best the OP can expect.


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## jhegarty (20 Nov 2008)

1John said:


> IMO .....nobody should decide to plead to something they did not do unless this was being done to escape the death penalty should that predicament be their misfortune.




Great post , couldn't agree more


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## sparkeee (20 Nov 2008)

do you truly believe that someone driving a car with his elbow on the window frame his hand holding a mobile phone pressed to his ear was just resting his head and not using the phone ,what a story that is,the judge should laugh at the excuses and fine you the most,only today thare has been two deaths on the roads caused by negligent inattentive driving.


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## MrMan (20 Nov 2008)

> IMO .....nobody should decide to plead to something they did not do unless this was being done to escape the death penalty should that predicament be their misfortune



Hopefully it won't come to that for the op, but the other way of looking at it is if the penalty is so minute, why waste your time going through unessessary hassle and stress just on a point of principle.


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## jhegarty (20 Nov 2008)

sparkeee said:


> do you truly believe that someone driving a car with his elbow on the window frame his hand holding a mobile phone pressed to his ear was just resting his head and not using the phone ,what a story that is,the judge should laugh at the excuses and fine you the most,only today thare has been two deaths on the roads caused by negligent inattentive driving.




can you point to one case , ever , when someone was convicted for having only one had on the steering wheel ? 


I hope you never change gear...


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## MrMan (20 Nov 2008)

I think he might have been refering more to resting his head whilst driving, most people need to sit upright and look out through the windscreen.


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## aircobra19 (20 Nov 2008)

People usually do this in heavy slow moving traffic, waiting in a queue etc. At the lights. So how dangrous it is would be depend on the context in which its happening. The reality is theres no proof that you aren't holding a phone unless you had another witness outside the car. So realistically its a charge you can't easily defend against. You could have a pay as you go phone and a bill phone. 

End of the day is the cost of defending worth the effort and the likely outcome.


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## sparkeee (20 Nov 2008)

i can point to many many cases where people have been convicted for driving with one hand on the steering wheelWhile holding a mobile phone in the other hand and rightly so this is dangerous and negligent driving.


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## starlite68 (20 Nov 2008)

MrMan said:


> why waste your time going through unessessary hassle and stress just on a point of principle.


 because without principle...what are we?


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## Guest106 (20 Nov 2008)

The point of principle has been raised so I shall share mine with those who may find it of interest and it is this.
The State must never proceed or be allowed to succeed against it's citizens by foul or unfair means.  The principle of transparency applies totally.

To do otherwise is to allow the agents of the State to engage in a variety of nefarious, wrongful and even illegal acts with impunity.  This is wrong and unacceptable in all properly admistered democracies.

We, I, as mere mortals will transgress from time to time and the laws enacted already exist to make corrections and administer sanctions following proper enquiry within acceptable and prescribed codes of behaviour on the part of those entrusted with enforcement.  No agent of the State has ever been sworn in and trained to safeguard and maintain the State's interests and authorised to do so by unfair or illegal means.

To do otherwise is to allow corruption and I think we have had too much of that from the custodians of the law in their various settings in this State in modern times.  That is the foundation for miscarriages of justice.

My bottom line is this:  As a citizen of this State. I do try to observe it's laws and recognise the responsibilities that go with that but occasionally I may be found wanting in that regard in an unguarded moment.  Now if I transgress, the State will have to catch me by fair means before it can expect to bring me before a court and mete out punishment to me.  If I am caught by fair means then I will give the prosecutors no trouble and will acquiesce with the prosecution's case.  It will be 'hands up' on my part and I will think no ill of any part of the prosecution machine, be that the Gardai, local authority, Judges, whatever.  

They have jobs to do and in all normal circumstances are entitled to our cooperation and support.  These officials perform very valuable work on behalf of the citizenry in discharging their functions.  But I will not allow the State to demean itself by engaging in the corruption of the judicial process in it's pursuit of nonentities like me.  I will do my bit to enable the State to maintain the high standards we are all entitled to expect and as are laid down in our Constitution.  I may sometimes falter and consequently may not fulfil my highest ideals in this regard but I will support the State in all circumstances in which it is acting fairly and justly.
_
Webster on 'Principle' : .....a fundamental truth.....a settled rule of law....a governing law......a right rule of conduct_.


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## jhegarty (20 Nov 2008)

sparkeee said:


> i can point to many many cases where people have been convicted for driving with one hand on the steering wheelWhile holding a mobile phone in the other hand and rightly so this is dangerous and negligent driving.




is that what I asked ?


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## aircobra19 (21 Nov 2008)

sparkeee said:


> i can point to many many cases where people have been convicted for driving with one hand on the steering wheelWhile holding a mobile phone in the other hand and rightly so this is dangerous and negligent driving.


 
Convicted of what? Driving with one hand?


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## MrMan (21 Nov 2008)

starlite68 said:


> because without principle...what are we?



Are we really getting deep about someone incorrectly getting a fine for holding a phone whilst driving? Our views differ, I prefer to get on with living and not let the minor infractions cause me any great grief.


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## Randy (21 Nov 2008)

http://www.penaltypoints.ie/the_full_list_of_offences.php

Hi Steve,

check the above link for the current list of penalty point offences. As you will see the one relating to your charge is for *"Using Mobile Phone While Driving".*

Like you, I was recently stopped for *"holding"* a mobile when I asked the Garda what the offence was he told me it is illegal to "Hold" a phone while driving.

The point is, like you I was not not actually using (texting/making a call/emailing) the phone while driving, therefore the charge of "Using" cannot be correct.

As yet, I havent received my prosecution notice, but I intend to go to court and fight the case on the basis of being charged with an offence that I was not committing. I'm no legal eagle, but I don't believe that you can then be charged with a different offence.......though I'm sure somone will correct me!

Finally, to all you posters getting on Steve's back about his driving position, I'm sure you are all perfect drivers who have never demonstrated any human frailties whilst driving, but can you at least just answer the OP's original question without getting all high and mighty!


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## RS2K (21 Nov 2008)

Why would you have a mobile in one hand if you weren't using it or about to use it?


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## starlite68 (21 Nov 2008)

MrMan said:


> I prefer to get on with living and not let the minor infractions cause me any great grief.


 its minor infractions let go unquestioned,.that lead to major infractions!


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## MrMan (21 Nov 2008)

starlite68 said:


> its minor infractions let go unquestioned,.that lead to major infractions!




Well hopefully the guard won't progress to planting evidence or give in to corruption on the back of this miscarriage of justice!


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## jhegarty (21 Nov 2008)

MrMan said:


> Well hopefully the guard won't progress to planting evidence or give in to corruption on the back of this miscarriage of justice!




They take your rights aware one small step at a time...


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## dereko1969 (21 Nov 2008)

why not look at the law upon which the penalty points are based? the offence is holding a mobile phone, so don't bother wasting your time going to court, you will lose:
Prohibition on holding mobile phone by driver of mechanically propelled vehicle, etc.
*3*.— (1) A person shall not while driving a mechanically propelled vehicle in a public place *hold* a mobile phone.
(2) _Subsection_ _(1)_ does not apply to a member of the Garda Síochána, an ambulance service or a fire brigade of a fire authority (within the meaning of the Fire Services Act 1981) who is acting in the course of his or her duties and holding a mobile phone in relation to the performance of his or her duties.
(3) A person who contravenes _subsection_ _(1)_ is guilty of an offence.
(4) The Minister may, to avoid the impairment or interference with the driving capacity or capabilities of the driver of a mechanically propelled vehicle, make regulations in relation to the restriction or prohibition in mechanically propelled vehicles in public places of the use of—
(_a_) a mobile phone (other than in the circumstances referred to in s_ubsection_ _(1)_ ),
(_b_) an in-vehicle communication device,
(_c_) information equipment, or
(_d_) entertainment equipment.
(5) Different regulations may be made under _subsection_ _(4)_ for different classes of cases coming within the same class of equipment or for different classes of vehicles in relation to such equipment or different classes of persons.
(6) A person who contravenes or fails to comply with regulations made under _subsection_ _(4)_ is guilty of an offence.
(7) It is a defence for a person charged with an offence under _subsection_ _(3)_ , in relation to *holding* a mobile phone while driving a mechanically propelled vehicle, or under _subsection_ _(6)_ , in relation to the use of a mobile phone or an in-vehicle communication device, to show that he or she was—
(_a_) using it to call the Garda Síochána, an ambulance, fire or other emergency service on numbers prescribed for such service, or
(_b_) involved in or acting in response to a genuine emergency.
(8) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding €2,000.
(9) In this section—
“ hands-free device ” means a device designed so that when used in conjunction with a mobile phone there is no need for the user to hold the phone by hand;
“ *hold* ”, in relation to a mobile phone, means holding the phone by hand or supporting or cradling it with another part of the body;
“ interactive communication function ” includes—
(_a_) sending or receiving oral or written messages,
(_b_) sending or receiving facsimile documents,
(_c_) sending or receiving still or moving images, or
(_d_) providing access to the internet;
“ in-vehicle communication device ” means a communication device designed or adapted to be attached to or integrated into a mechanically propelled vehicle or which may be used in or on such a vehicle and with which a person is capable of making or receiving a call or performing an interactive communication function and includes a two-way radio;
“ 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, but for the purposes of _subsection_ _(1)_ does not include a hands-free device;
“ portable ” in relation to a mobile phone, means the phone is designed or adapted to be carried by a person;
“ two-way radio ” means an apparatus for wireless telegraphy which is designed or adapted for the purpose of transmitting or receiving spoken words or messages between a person and another, using a frequency other than a frequency used by a mobile phone.


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## MrMan (21 Nov 2008)

jhegarty said:


> They take your rights aware one small step at a time...



Well at least you still have the right to be paranoid.


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## jhegarty (21 Nov 2008)

dereko1969 said:


> why not look at the law upon which the penalty points are based? the offence is holding a mobile phone, so don't bother wasting your time going to court, you will lose:




Which would all be very relevant if he had been holding a mobile phone


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## peelaaa (21 Nov 2008)

MrMan said:


> I agree that if he wasn't in the wrong he shouldn't be punished but sometimes you are better off taking the lesser of two evils. The guard could argue that the op was about to make a call, he might be lucky and the guard won't turn up though which is a possibility.


 
Are you saying, he had the phone to his ear before he dialled? Why would he do that?


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## Guest106 (21 Nov 2008)

Just where in these posts does Steve say he was holding a phone ?
If, as seems to me to be the case he was not holding a phone (that's what he is inferring based on my reading of what's here) why then should he pay the fine thereby convicting himself and accepting the penalty points ?
If he is to be convicted unjustly why should he assist the State in such malfeasance by adopting a guilty stance ?
No sane person cuts a rod to beat himself, does he ?

The guard will have to swear that he saw the phone being held by Steve and nothing short of that will satisfy the Judge.  Suggestions that evidence by the guard along the lines  that he (the guard)  'thinks he saw'  or...'nearly sure he saw' will result in your conviction are just so much rubbish and can be discarded straight away.  Judges require facts before convicting and such statements cannot be construed as factual.

Furthermore,you can only be convicted of the charge(s) upon which you appear before the Judge.  It is completely irrelevant as to what people may say about your driving posture or habits, if it's not on the summons order requiring you to attend court then it doesn't apply.  You might well be the worst driver on the planet but you are not prosecuted for that.  You are being prosecuted for a mobile phone related incident according to your own account.

The reason....very simple .....because a defendant is entitled without any equivocation to know what he has to defend himself against when prosecuted so that he can prepare his defence and/or instruct his defender correctly.  He could not possibly do that if,  as is implied if one were to pursue some of the logic on offer by some posters, he were to end up convicted of an offence he didn't even know he was being prosecuted for.

On the other hand, Steve, if this is all semantics, and you are merely seeking a way to frustrate the prosecution......well just be a man and pay the fine....learn your lesson....and put it all down to experience.  

Some things are best learned by experience.


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## PaddyBloggit (21 Nov 2008)

Looking forward to seeing the outcome of this case.


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## Frank (21 Nov 2008)

when is the case?


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## taponavillus (22 Nov 2008)

plead not guily and ask to take the oath,then swear you werent using phone. the judge will then see that you are prepared to swear 2 the matter


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## PaddyW (29 Nov 2008)

I don't know where the OP holding the phone came into it. His head was resting on his hand. The other hand on the steering wheel. He asked the garda to check his phone after he stopped him and he was no longer driving. Where did him holding the phone come into it. 

Would like to know the outcome of this case, if the OP would be good enough to let us know.


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## aircobra19 (29 Nov 2008)

From the very first post?



steve1234 said:


> ...he said you dont have to be actually making any calls just holding it is enough...


 
Its his word against the Guard.


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## DavyJones (29 Nov 2008)

jhegarty said:


> they Take Your Rights Aware One Small Step At A Time...



Funny cos it's true.


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## Guest106 (29 Nov 2008)

Aircobra19 - I see what you've said but take a different meaning from it.

Steve, it seems to me, does not say he was holding a phone in the OP.
There is an implication that he could have been holding a phone contained in the guard's observation that "you don't have to be making any calls just holding it is enough".  But that's all it is, an implication not a specific statement by the guard to Steve or Steve to us readers that he was holding a phone.  That statement can be made to anyone not holding a phone, i.e. loads of people reading that observation here are not holding phones.

So why was the guard dealing with him.........maybe he was just mistaken ?

Personally, I have taken to watching drivers activities within vehicles on the roads since this discussion got underway and loads of times I considered drivers to be on the phone initially only to be able to see subsequently that that was not the case.

Unless Judges are rigorous in their standards of evidence and proof, there will, imo, be injustices from time to time.  Shallow evidence must not become acceptable in these cases.


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## MrMan (1 Dec 2008)

1John said:


> Aircobra19 - I see what you've said but take a different meaning from it.
> 
> Steve, it seems to me, does not say he was holding a phone in the OP.
> There is an implication that he could have been holding a phone contained in the guard's observation that "you don't have to be making any calls just holding it is enough".  But that's all it is, an implication not a specific statement by the guard to Steve or Steve to us readers that he was holding a phone.  That statement can be made to anyone not holding a phone, i.e. loads of people reading that observation here are not holding phones.
> ...




Nobody is saying he was on the phone, what we are saying is that as long as the guard thinks that is what he saw then that is what the judge will be hearing. Guard 'I saw him in charge of a vehicle whilst holding a phone' OP' I was not holding a phone i was merely resting my head in my hand whilst in charge of a vehicle'.


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## Guest106 (1 Dec 2008)

The very way in which this whole discussion has evolved is enough to show what a difficult situation this is to deal with for the judge.

One could go on and on without achieving much in the way of certainty.
Belief is not identical to certainty and that is how this case can be defended.

Let us say that the guard gives his evidence and says he saw the defendant handling a mobile phone and there is no other evidence to support this.  That then is the allegation  for the judge to consider on one side, i.e. the prosecution's case.

Now in response to that, let's say the defendant has an alert and no nonsense lawyer then this is if the case is robustly defended, imo, what is likely to happen.

The lawyer will in crossexamination ask the guard to describe in precise detail  what he saw that led him to his belief.  The guard will have to be able to say that he physically saw the phone in driver's hand and that as a legal certainty is quite hard to establish.

For example: 
"hand up to side of face or head".....is not evidence of holding phone.
"holding something dark grey or black or  indeed any color in his hand".....is not evidence of holding phone.
"object that looked like/resembled a mobile phone".....is not evidence of holding phone.

Now if the guard does say he saw the phone in hand, then the circumstances of the observing, the lighting conditions, the angle at which seen, where the guard was positioned, and the line of sight to the driver's hand can all be brought into contention in appropriate situations.  It is against that background that the judge will determine the credibility of the prosecution case.  If the defence succeeds in casting doubt on the guards evidence and if the driver takes the oath (he will be given that option by the judge) and makes a credible denial that he did not have a phone in hand, it would be an unwise judge who would proceed to convict.
If there is a doubt, then the defendant is always entitled to the benefit of it and that is a well established principle of law.

On the other hand if the guard saw the incident clearly up close and let's say stopped in traffic beside him then it's game, set and match to the garda. 
My main point in offering something to this discussion is to say strongly that people should not be convicted on weak evidence.


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## Seagull (2 Dec 2008)

MrMan said:


> The guard wasn't out of line if he believes what he thinks he saw, it is credible for him to have thought to have seen a man holding a phone to his ear because how many of us simply drive whilst resting our head in our hands?


It depends on the circumstances. Was he driving at speed, or crawling in heavy traffic. You'll see it quite routinely where people are stopped in heavy traffic on the M50. I'll happily admit to doing it myself. The car's going nowhere, the handbrake is on, and I'm leaning my head on my hand. It hardly qualifies as dangerous driving.


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## Guest106 (17 Dec 2008)

(O and merely having a mobile in your hand whilst driving is not to my knowledge an offence)[/quote]

McCrack
Re your post of 18/11 as per extract above, may I as politely as possible point out to you that the precise offence is "holding" a mobile phone and not 'using' for verification of which one should consult the text of Sec 3 Road Traffic Act 2006.


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## wheepee (30 Dec 2008)

Hi Steve
Just been through a similar case and was lucky to be aquitted. Basically it was down to the word of the Garda against my word, and (my trump card, as the judge said) my partners.

As has been pointed out, the offence is holding a phone so all phone records are "irrelevant", though they did in my case show that I infrequently used the phone, which was noted.

I did have a solicitor, and he made sure that both of us got to give evidence. I tended to elaborate on what had occoured on the day (things like, the phone was stuck in my pocket and I didnt realise I had it, etc) and the judge mentioned that this made it seem like I had something to hide. 

Basically just say, and repeat, "I was not holding a phone" and answer any questions asked. It is then up to the judge to decide who is telling the truth.

One thing that helped my case is that the Garda stated, in his evidence, that he only observed me as I passed him, in other words, only momenteraly, as opposed to seeing me as I approached. This is where the solicitor will be usefull in picking up on these details.

The alternative, which some people used successfully (Im not claiming that it was not true), is to swear that you never received the origional Notification of the Offence, due to some addressing fault.

Finally, it did cost a days holiday for myself and my partner plus a bill from the solicitor that was far more than any fine or insurance loading. However I am happy to say I still have a points free license (for now).

Good luck


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## allthedoyles (30 Dec 2008)

steve1234 said:


> Looks like this is going to cost more than I thought but worth it in the end.


 
Judgement Day ( in my opinion )

Garda will stand up and say that he witnessed defendent *holding* a mobile phone while driving.

Defendent will say this is untrue 

Judge will say : Defendent is guilty


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## Guest106 (31 Dec 2008)

allthedoyles said:


> Judgement Day ( in my opinion )
> 
> Garda will stand up and say that he witnessed defendent *holding* a mobile phone while driving.
> 
> ...



Sorry, Allthedoyles....can't agree with that.  That'sthe way it will be told anecdotally away from the Court, etc but it will not be dealt with in that way on the day. 

No point in regurgitating what's been laid out in very significant detail in this and other threads dealing with this topic but there is a lot to learn by just spending a little time in rereading what has already been posted here from a number of useful sources.


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## steve1234 (5 Jan 2009)

ah sorry this is my thread - i thought it got deleted but it just got moved to a different section. Anyways i had my day in court but the guard didnt show up. he was off down the country. So the case is rescheduled now for march. So im down two days pay now so im starting to agree with mr man - i should have paid it and just forgot about it - either way im the looser. Just to be clear on one point though - i wasent using the phone at all - i.e. - no phone in my hand, resting on my leg etc..


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## Frank (5 Jan 2009)

Seems a bit mean to make you go again. If you weren't available would the court be so accomadating?


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## steve1234 (5 Jan 2009)

No probably not -i was thinking that it should have been thrown out. Think it was my solicitor who was a bit slow off the mark. he had too many cases to deal with in the day. I waited around all day and when it was called it was and postponed before i even stood up. Very disorganised court room also - i wouldnt like to be there for anything serious - sounded more like an AGM of a football club.


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## Jane Doe (6 Jan 2009)

TreeTiger said:


> It's your word against his
> 
> Does anyone know for sure if it's an offence to hold a phone while driving?


 Thought it was an offence to have it on your person, even in your pocket? Clarification anyone?


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## jhegarty (6 Jan 2009)

No , just holding it


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## Jane Doe (6 Jan 2009)

sparkeee said:


> reminds me of the tale of the fella and the sheep,his defence was he was just going to the toilet and the sheep backed onto him.


or the man who persisted in headbutting his mugger's boot


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## Jane Doe (6 Jan 2009)

jhegarty said:


> No , just holding it


 you can have it in pocket? I always leave on dash as i have often visualised being stopped at a checkpoint and it rings in my pocket


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## Megan (22 Jul 2009)

May I ask how long it takes for the notice to come? My OH was stop for using his mobile phone (Guilty) in early June  but he hasn't received any notice for payment yet. Would it normally be 7 weeks or longer? The guard checked his address with him when he show his licence so there shouldn't be a problem there with address.


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## stargirl01 (29 Jul 2009)

Rigoletto said:


> he cant get ANY penalty points he has a uk driving licence.



He can get penalty points on a UK license within the ROI. I know this based on experience; came into effect around Apr 2008 and got caught in July 2008.


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## JoeB (29 Jul 2009)

steve1234 said:


> Anyways i had my day in court but the guard didnt show up. he was off down the country. So the case is rescheduled now for march. So im down two days pay now so im starting to agree with mr man - i should have paid it....



Yes, this case should have been struck out... you should have defended yourself and requested that the case be struck out as the State had no case to present... your solicitor let you down very badly here... will you now have to pay your solicitor twice.. this is a disgrace.

If you hadn't shown up you would have been convicted in your absence.

Did your solicitor even ask for the case to be struck out?, if not I would report him to the Law Society or whoever for imcompetence and not putting your best case forward and request that he waive any fees or charges relating to your second court appearance.

If a request had been made for this case to be thrown out I believe it would have been sucessful.. unless the Guard had a representative or agent in the court speaking on his behalf and giving a very good reason as to why he wasn't there... the judge would often take your side on this, the judge knows he would have convicted you in your absence so it should be a two way street. Your solicitor is to blame, (if he didn't request a strike out)


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## paddyd (30 Jul 2009)

I'm aware this is a zombie thread, but

I've seen a case very similar where the defendant showed up with his phone records, and showed he didn't make/try to make/dial any calls nor receive any for over 30mins either side of the guard stopping him; no text, nothing. Even had his complete dialled number list for the state to go to Vodafone and disporve.

Judge asked the State why they thought a person would be holding a phone up to their ear if there was proof no call was going on; state agreed there wasn't a reason, but wouldn't agree that the guard didn't see what he said (to be fair they probably couldn't)

case struck out. took 2 mins tops.


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## monascribe18 (30 Jul 2009)

MrMan said:


> I agree that if he wasn't in the wrong he shouldn't be punished but sometimes you are better off taking the lesser of two evils. The guard could argue that the op was about to make a call, he might be lucky and the guard won't turn up though which is a possibility.


 

guard should have checked your phone when you were stopped


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## dogfish (30 Jul 2009)

Sorry wrong entry


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## Complainer (2 Aug 2009)

paddyd said:


> I've seen a case very similar where the defendant showed up with his phone records, and showed he didn't make/try to make/dial any calls nor receive any for over 30mins either side of the guard stopping him; no text, nothing. Even had his complete dialled number list for the state to go to Vodafone and disporve.
> 
> Judge asked the State why they thought a person would be holding a phone up to their ear if there was proof no call was going on; state agreed there wasn't a reason, but wouldn't agree that the guard didn't see what he said (to be fair they probably couldn't)
> 
> case struck out. took 2 mins tops.


What records did he get to show that he didn't receive a call? This wouldn't appear on his bill.


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## steve1234 (5 Aug 2009)

It came down to my word against the guard so the guard won as he's apparently trained at spotting people driving while holding mobile phones.
it took 3 times for the case to be heard (overcrowed courts and the guard didnt show up for one of them) so i lost 3 days work and got a 500 euro fine.
i was going to appeal it (as i wasnt holding the phone) but i couldnt afford to take any more days off work.

my advice if your in the same situation. Just pay the fine even if your innocent and put it down to bad luck.

All the best
steve


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## Moffo (7 Aug 2009)

Where was you phone if you weren't holding it,


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