March 20, 2019 8:53 pm
Updated: March 21, 2019 7:10 am

B.C. judge rules having phone wedged in the car seat is not ‘distracted driving’

WATCH: A recent Supreme Court ruling could see hundreds of traffic tickets thrown out after a B.C. judge determined just having your cell phone visible in your car no longer counts as distracted driving. Sarah MacDonald reports.

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If you drive in this province, there’s a good chance your road habits have been influenced by the strict legislation surrounding distracted driving, and the costly penalties that can come from it.

But a recent ruling by a B.C. Supreme Court judge overturning a conviction for one local driver could be a game changer, after arguing having a phone in plain sight doesn’t count as distracted driving.

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Legal experts say the decision, which was handed down March 1, could open up a flood of appeals that may take advantage of differing views of the law.

READ MORE: 2 tickets in 6 minutes cost B.C. distracted driver more than $1,800

“There’s always lack of clarity in the law, and there will always be circumstances that are somewhat in between. And the courts have to grapple with it,” the driver’s lawyer Paul Doroshenko of Acumen Law explained.

The driver, identified as Philip Partridge in court documents, was charged with using an electronic device in Vancouver in the summer of 2018 after an officer spotted a cellphone wedged in the cushion of his passenger seat — technically within sight, and technically unsecured.

Partridge was given a ticket, and was initially convicted in traffic court.

WATCH: (Aired Sept. 6, 2018) Aaron McArthur reports on ICBC’s new crackdown on distracted drivers

Crown and defence ultimately agreed, however, that the “mere presence of a cell phone within sight of a driver is not enough to secure a conviction.”

The judge’s decision noted, “The appellant emphasizes that since the officer never saw [Partridge] touch the device in any way, there was no ‘further accompanying act,’ and so [Partridge] cannot be found to have been ‘using’ his cell phone.”

The ruling could set a precedent as the province prepares to increase its already stiff fines for the infraction by 20 percent by November.

READ MORE: Police across B.C. step up distracted driving enforcement

Doroshenko estimates there are hundreds of drivers in British Columbia that could now have a good chance at appealing their distracted driving convictions on similar grounds, under legislation that’s already relatively new and subjective.

At issue is what exactly constitutes the “use” of an electronic device behind the wheel.

“There’s always the question of…whether or not you’re actually using [the electronic device],” Doroshenko explained.

WATCH: What are the actual laws for distracted driving in B.C.?

The Vancouver Police Department said Wednesday it had also been made aware of the ruling.

“I can say that we are aware of the ruling,” Sgt. Jason Robillard confirmed, “and it’s set some very clear guidelines and interpretations of the Motor Vehicle Act.”

Doroshenko’s colleague at Acumen Law Kyla Lee said even police officers can be unsure of what the rules are.

“There’s a lot of uncertainty in the law created by conflicting decisions at traffic court that said that was not distracted driving, but on the other hand said it was,” she said, adding she gets calls every day from people who are ticketed for loose phones seen in their vehicles.

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READ MORE: Picking up your cell phone while driving OK during an emergency, says Saanich police

Even so, expect to see officers out in full force in their quest to crack down on distracted drivers this month — which is dedicated to Distracted Driving Awareness.

Already, more than 1,100 distracted driving tickets have been issued to motorists Vancouver in the past three weeks.

More than 218,000 tickets for using electronic devices behind the wheel have been issued in B.C. since 2013.​

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