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

starlite68 said:
because without principle...what are we?
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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.
 
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!
 
Why would you have a mobile in one hand if you weren't using it or about to use it?
 
starlite68 said:
its minor infractions let go unquestioned,.that lead to major infractions!
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Well hopefully the guard won't progress to planting evidence or give in to corruption on the back of this miscarriage of justice!
 
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 subsection (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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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:
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Which would all be very relevant if he had been holding a mobile phone
 

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


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'.
 
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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