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How to Fight an Unfair Cell Phone Ticket

Question:  

Today I was stopped at a red light and heard my cell phone go off. I picked up the phone for maybe 10 seconds to check my text messages. A police car was beside me and he gave me a ticket for using my cell phone. I don’t think that’s really fair given that I was stopped at a red light and was only checking my texts.

Response:  

I am sorry to hear about your ticket. It sounds like you have been charged under Highway Traffic Act section 78.1:

78.1 (1) No person shall drive a motor vehicle on a highway while holding or using a hand-held wireless communication device or other prescribed device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages.

Previously these charges did not carry any demerit points. However, recent changes to the law have now increased the penalty to 3 demerit points. A conviction will also result in a record of the offence being added to your driving record which may in turn impact the cost of your insurance.

There are some exemptions to HTA s. 78.1 that we can review with you to see if any of them might apply in your case. Generally, the safest advice when driving is to keep your cell phone out of reach and out of sight to avoid even the allegation that you held or used it. If you do require the use of your cell phone, HTA s. 78.1 (6) lists the safe and legal conditions under which you may use the device while in your vehicle:

(6) Subsections (1) and (2) do not apply if all of the following conditions are met:

1. The motor vehicle is off the roadway or is lawfully parked on the roadway.

2. The motor vehicle is not in motion.

3. The motor vehicle is not impeding traffic. 

Protecting your driving record and insurance is important in guarding your personal interests and your ability to remain licenced and insured. If you would like to have us file your matter with the court on your behalf, we will have the right to a full disclosure of the Prosecutor’s evidence to review the legal merits of their case. We can certainly review that evidence for any errors or omissions that would warrant having the charge against you withdrawn. If not, it may be possible to negotiate the charge down to a lesser offence to mitigate the pending penalties. The last step in the defence would be to run a trial to see if the presiding Justice of the Peace will dismiss the matter. 

We offer a no cost, no obligation initial consultation and would be happy to speak with you about your ticket. We can be reached by toll-free telephone at 1-844-647-6869 or by email at info@otdlegal.ca. You are also welcome to drop into our office at your earliest convenience. 

Posted under Distracted Driving, Traffic Ticket Defence

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