A B.C. man has lost his fight against a distracted driving ticket after he was seen holding his cellphone on the steering wheel of his car while driving.
Patrick Tannhauser was issued a ticket on Aug. 17, 2017, on the Trans-Canada Highway near Victoria, B.C. for distracted driving.
But Tannhauser fought the ticket and in two courts was acquitted of the charge.
In a ruling posted online, Tannhauser admitted he had a cellphone in his hand at the time he was pulled over.
However, he said his cellphone was equipped with software that disabled its functions while the vehicle was in motion so it was not possible for him to have been using it.
There was no dispute that Tannhauser was holding the cellphone, but the question became whether it was being held “in a position in which it may be used”.
Originally, the justice accepted Tannhauser’s argument that the software made it impossible for the phone to be used.
However, the Crown kept appealing the decision and on June 1, 2020, Chief Justice Bauman found the disabling software could not form the basis for a successful defence.
“Cellphones are included in the definition of ‘electronic device’ in the MVA,” wrote Bauman.
“If the legislature intended the courts to conclude cellphones were not, in fact, electronic devices in certain circumstances, it would have stated this explicitly.
“In my view, holding an electronic device on top of a steering wheel, in clear view, is sufficient to constitute holding it in a position in which the device may be used.”
Bauman found holding the cellphone in a way the screen can be seen is aligned with holding it in a way that it can be used.