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

[McCrack]

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.

 

[Guest106]

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.

 

[jhegarty]

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 ?

 

[MrMan]

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?

 

[jhegarty]

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.

 

[Chocks away]

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.

 

[Kate10]

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.

 

[jhegarty]

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.

 

[Mpsox]

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!!!!!!!

 

[Guest106]

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.

 

[Chocks away]

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?

 

[jhegarty]

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.

 

[MrMan]

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.

 

[MrMan]

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?

 

[jhegarty]

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...

 

[MrMan]

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.

 

[Latrade]

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.

 

[MrMan]

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.

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.

 

[TreeTiger]

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?

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

... 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!

 

[sparkeee]

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.