Unfair ticket for "using" a mobile in a car. Advice please!

mikelo303

HI,

Yesterday I got a ticket form Garda for "using" a phone in my car. Normally I would pay but let me explain the situation little later. After that situation I was so angry. I went to Garda website and left my complaint describing situation. Here it is:

"I was stuck in lunch time traffic at Lower Ormond Quay street. My car was in full stop for a while because of the traffic. Next to me was garda car (bigger one like a truck). I had my phone placed in cup holder beside me with gps map. I reached to correct it because it moved durring travel. I taped the button. I corrected my phone with my left hand without even rising it, and I taped home button to check my position against my destination. I wanted to see time left to my destination. I did not even rised it to my ear or anything, Ijust simply reached for it. All action took about one second. Then I heard honk from the Gard car beside me and Garda person shouting at me something. I did not hear it correctly. He poited at me to park on the side of the road. Then he was simply rude and unpleasnt, asking me for details and saying that I broke the law because I was HOLDING my phone WHILE driving. I had one ticket for that previously so I am very careful about it now not to call, text, aro do anything on the phone while I am driwing. I said to the Garda officer that first of all I was in full stop. It was a traffic. I was not talking, texting or anything just corrected my phone and checked my position while waiting in the traffic. Really this all action was a second maybe. He said that it does not matter because I was holding it. In my opinion that was elementary abuse of competence and abuse of the law. Like I said I was simply checking my time position to my target on my gps. What would it be if I had GPS device only and had to take it even to my hand to check position? Will I get ticket for using GPS while standing in traffic? I tried to explain to Garda officer that simply with the same gesture I could be reachng for my wallet beside me, or my notes, or spare coins, pen placed in same location. He did not wanted to listen and continued to take notes. I asked him once for his name and number and he did not responded. I asked him second time and he did not responded either and just moved to the front of my car without even acknowledgin me and my questions. Then he returned to me and said that I will receive a ticket over a post. I want to point out that during all this situation he was acting veru unpleasant and he simply wanted to make his point without even listening. I will not pay for this ticket and I will be fighting with such abusive behavior in court. Such behaviour and arrogant approach to citizens put bad name to whole Garda department."

My position now is that I do not want to pay because simply it was using gps on my iPhone, not even typing or something, just clicking on the screen to see the position. More over, I knew that Garda car is beside me. I knew I am not "using" my phone just checking position while standing in traffic. Simply I was sure I am not doing anything bad.

I want to go to court and explain same to the judge as I feel It was exaggeration of the law. He was acting rude and completely ignoring me. I want to defend my rights and my opinion. :mad:

Question is. Is it worth it? What if I loose? What are the usual costs (extra) of loosing in that situation? Should I pay and swallow my pride and let it slide. Do I have any chances in court?

Any advice?

source

Unfortunately for you, the offence is for holding the phone, not using it. The garda was right in giving you the ticket.

Whether you were stopped in traffic or not, you were still in charge of a mechanically propelled vehicle and have to keep your concentration. You have to be aware of what is going on around you, and fiddling with your phone takes away from that concentration.

As to the members attitude i won't comment as i wasn't there, there's 2 sides to every story.

Personally i would ban all distractions from the car. Including food and drinks as they can be just as distracting as a phone.

littlemac1980

Well as regards the failure of the Guard to listen to your explanation, I would suggest you won't get very far claiming he was abusive on account of that.

It seems clear that the Guard had formed his opinion that you had committed an offence and once he does, it is his duty only to inform you of the offence and charge you accordingly, that's my understanding of the role of the Gardaí strictly speaking, though there are some guards here that may be able to elaborate more.

It is Judges who are tasked with deciding if the Guard applied the law correctly, and that is the point during which your side of the story would be heard. However, AFAIK, the offence is holding a mobile phone while in control of a motor vehicle. I even think that it has been amended and expanded to include other handheld electronic devices such as ipods and GPS, so if thats the case, it shouldn't matter that you were stopped in traffic, or only holding it for a second, or only checking your GPS.

Regarding your chances of convincing a Judge that the Guard was incorrect, considering, as you point out you were right along side the Garda Car, well that probably won't help.

mikelo303

What if I had phone holder? And touching it to check my position? Will I get ticket anyway?

source

mikelo303 wrote: »

What if I had phone holder? And touching it to check my position? Will I get ticket anyway?

Simple rule, don't go near your phone when driving. If you need to interact in any way with your phone pull over and park. Otherwise you will get a ticket.

EDIT: There is one exception to this, if you're using the phone to call 999 or 112 in an emergency situation then that is okay, but thats the only exception to the rule.

mikelo303

For me it's just funny. Obviously Garda acted like complete d**. I have seen dozens of people calling while driving. Texting, eating, all that. But no, I had to get a fu** ticket for holding it for a second while being stuck in traffic. Simply, he could just warn me, but obviously they love to feel the power and get money form free tickets. Last time I got speeding ticket by speeding 5Km over a 40 Km limit! I had big respect for Garda. Now they are just a joke for me. No respect.

HellFireClub

I'd be going to court and telling the judge it wasn't a phone you touched but a sat-nav system working on your phone, you are perfectly entitled to argue that you were holding something that was not exclusively a mobile phone but also another type of device completely that is not illegal to hold.

Try to see it like this, imagine you are a girl and you pick up your handbag on the passenger seat, which contains your mobile phone. Technically you are holding your mobile phone in your hand although you are not committing an offence as you are holding a handbag in the first instance and a mobile phone in the second instance.

My bro was up in court this morning and the case was struck out because the cop didn't bother showing up, I always say never be afraid to go to court, especially with the intelligence level of the cops in this country.

This is just what I would do but I don't think people are allowed to offer legal advice on here so disregard everything above lol and get legal advice from a solicitor!

listermint

It looks to me that in this case the user was not 'holding the phone' as legislation dictates. So I would see some grounds for appeal.

There is not legislation to deal with operation of phone in holder. Otherwise what would be the purpose of car kits.


This is not black and white but I would definitely see some grounds for appeal. But it would be your word against the guards and they might even decide to add driving with undue care and attention depending on how it goes.

FreudianSlippers

foinse wrote: »

Simple rule, don't go near your phone when driving. If you need to interact in any way with your phone pull over and park. Otherwise you will get a ticket.

EDIT: There is one exception to this, if you're using the phone to call 999 or 112 in an emergency situation then that is okay, but thats the only exception to the rule.

That's a bit ridiculous though isn't it? I mean ignoring your view on banning all things; it's not illegal to use your GPS if it's installed on dash. Shouldn't a Garda be capable of using their discretion in these circumstances?

jhegarty

listermint wrote: »

I they might even decide to add driving with undue care and attention depending on how it goes.

Would be a stretch to prove with a car stopped in a traffic.

HellFireClub

FreudianSlippers wrote: »

That's a bit ridiculous though isn't it? I mean ignoring your view on banning all things; it's not illegal to use your GPS if it's installed on dash. Shouldn't a Garda be capable of using their discretion in these circumstances?

But that's exactly what the OP was doing when stopped, using a GPS system on the dash, it isn't illegal. I'd very happily take my chances in court if I was stopped on this basis, especially when dealing with the attitude of the cop under discussion here.

A mobile phone isn't just a mobile phone device these days, my iPhone 4 is not exclusively a mobile phone device, it is a device with laptop type processing capabilities that is also fitted with mobile phone functionality, but it is also a GPS system (a lot of cars are fitted legally with these), an e-mail system, a compass system (some 4 x 4 vehicles are fitted with these by the manufacturer!), a calender system, a stereo system, (certainly not illegal and most if not all cars are fitted with one!)...

There is cearly an awful lot of room here to create an argument out of in court I think...

Marcusm

mikelo303 wrote: »

What if I had phone holder? And touching it to check my position? Will I get ticket anyway?

The offence is of touching the device - using and for what function is irrelevant - UNLESS the device is physically attached to the car. For this reason, a mounted holder is advisable as that results in it being physically attached to the car, be it the dash, the screen or whatever. The theory goes that if attached, it's no different to pushing the AC or radio buttons.

Pat Mustard

Here is the relevant section of the Road Traffic Act 2006. http://www.irishstatutebook.ie/2006/en/act/pub/0023/sec0003.html#sec3

The offence is "A person shall not while driving a mechanically propelled vehicle in a public place hold a mobile phone."

In the section the relevant definition is: "hold ”, in relation to a mobile phone, means holding the phone by hand or supporting or cradling it with another part of the body. - See link posted.

Also, look up the definition in a dictionary or answers.com as to whether it means "to have and keep in one's grasp".

You might want to check it with a solicitor.

I don't have time to look up the definition of "driving" either so it'd be interesting to see if you could be "driving" while stopped, under the Road Traffic Acts.

source

FreudianSlippers wrote: »

foinse wrote: »

Simple rule, don't go near your phone when driving. If you need to interact in any way with your phone pull over and park. Otherwise you will get a ticket.

EDIT: There is one exception to this, if you're using the phone to call 999 or 112 in an emergency situation then that is okay, but thats the only exception to the rule.

That's a bit ridiculous though isn't it? I mean ignoring your view on banning all things; it's not illegal to use your GPS if it's installed on dash. Shouldn't a Garda be capable of using their discretion in these circumstances?

No it's not illegal at the moment. However the minister has the power under current legislation to make it illegal.

When you turn on a gps it warns you not to use it while driving. While it might be inconvenient to pull in when using these devices, safety should be the top of the priorty list for all drivers.

Every member can and will use their discretion, on matters like this. However they don't have to and they let the circumstances dictate when they use it. The member in this case obviously felt that a ticket was the correct option.

HellFireClub

Marcusm wrote: »

The offence is of touching the device - using and for what function is irrelevant - UNLESS the device is physically attached to the car. For this reason, a mounted holder is advisable as that results in it being physically attached to the car, be it the dash, the screen or whatever. The theory goes that if attached, it's no different to pushing the AC or radio buttons.

I disagree. You could reasonably argue that when you were touching the screen, that the device was operating in a mode that rendered it as a GPS system, and therefore at that point in time, as far as you were concerned, it was not a mobile phone.

It was open to the Garda to check the device to see what actual mode it was operating in, before deciding to assume that an offence had been committed.

HellFireClub

foinse wrote: »

Every member can and will use their discretion...

And every citizen has a right to take their chances in court and have their case heard.

littlemac1980

It seems that if the citizen is to accept the charge and pay a fixed penalty, the penalty would not be more than €60. However, if they exercise their right to go to court and have the case heard, then they could end up being fined upto €2000.

MrFrisp

HellFireClub wrote: »

I'd be going to court and telling the judge it wasn't a phone you touched but a sat-nav system working on your phone, you are perfectly entitled to argue that you were holding something that was not exclusively a mobile phone but also another type of device completely that is not illegal to hold.


But,,it's still a mobile phone....

It's like the tv license fee...Rte/The Courts don't care if you can't even receive rte on the tv,,as long as you have a tv,you just have to pay it.

Unfair,but,,what can We do.

source

HellFireClub wrote: »

foinse wrote: »

Every member can and will use their discretion...

And every citizen has a right to take their chances in court and have their case heard.

Where did i say they didn't have that right? If the op wants to go to court and make representations to fight the issuing of a ticket then more power to him. I'm simply saying that from my reading of the op the member was correct in issuing the ticket and i would do the same

dillo2k10

Was the phone in flight mode at the time? If so it wasn't really a mobile phone at the time?

Finnbar01

foinse wrote: »

Personally i would ban all distractions from the car. Including food and drinks as they can be just as distracting as a phone.

Does that include young children?

Sempai

dillo2k10 wrote: »

Was the phone in flight mode at the time? If so it wasn't really a mobile phone at the time?

If it's in Flight mode then GPS is turned off! :rolleyes:

seamus

dillo2k10 wrote: »

Was the phone in flight mode at the time? If so it wasn't really a mobile phone at the time?

It doesn't suddenly stop being a mobile phone in flight mode.

“ 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

"Capable" being the operative word. The device is "capable" of making calls, even when that capability has been temporarily disabled.

It's similar as someone else has said, to TV licences. You need a licence for any device "capable" of receiving broadcast video transmissions, even if it's switched off all the time or the signal is so bad that it's not possible.

The only way to legally stop a mobile phone from being a mobile phone is to permanently remove the aerial.

amen

Should the Garda not have told the Op their name, rank and number when asked?

Are Garda not meant to wear their numbers are all times?

Should the op have been told why they were being stopped/told to move to the side of the road and under what law ?

MagicSean

mikelo303 wrote: »

For me it's just funny. Obviously Garda acted like complete d**. I have seen dozens of people calling while driving. Texting, eating, all that. But no, I had to get a fu** ticket for holding it for a second while being stuck in traffic. Simply, he could just warn me, but obviously they love to feel the power and get money form free tickets. Last time I got speeding ticket by speeding 5Km over a 40 Km limit! I had big respect for Garda. Now they are just a joke for me. No respect.

I was not aware we worked on commission. Thank you for informing me.

FreudianSlippers wrote: »

That's a bit ridiculous though isn't it? I mean ignoring your view on banning all things; it's not illegal to use your GPS if it's installed on dash. Shouldn't a Garda be capable of using their discretion in these circumstances?

If a person uses a GPS in a way that affects their driving they will get a ticket. It is the same offence which use to cover the mobile phones. I would be in agreement with foinse on this one. Every distraction should be banned coffee, breakfast roll, earphones (wtf), make-up. All it takes is for your attention to be taken for a few seconds and someone can end up hurt or killed. It was not too long ago I attended an accident caused by spilled coffee.

As for the ops particular case. The correct way to appeal is to first write to the local Super to outline why you feel you should not have received a ticket. He will talk to the relevant Garda and decide on wether it should be cancelled. If you have no luck with that then you can decline to pay the fine and fight your case in court.

MagicSean

Finnbar01 wrote: »

Does that include young children?

Yes.

amen wrote: »

Should the Garda not have told the Op their name, rank and number when asked?

He should have identified himself in some way.

amen wrote: »

Are Garda not meant to wear their numbers are all times?

In most cases, however that would be a disciplinary matter. The legislation requires that they be in uniform or identify themselves as a Garda.

amen wrote: »

Should the op have been told why they were being stopped/told to move to the side of the road and under what law ?

He was told why and the exact legislation need not be quoted.

HellFireClub

Seanbeag1 wrote: »

I was not aware we worked on commission. Thank you for informing me.



If a person uses a GPS in a way that affects their driving they will get a ticket. It is the same offence which use to cover the mobile phones. I would be in agreement with foinse on this one. Every distraction should be banned coffee, breakfast roll, earphones (wtf), make-up. All it takes is for your attention to be taken for a few seconds and someone can end up hurt or killed. It was not too long ago I attended an accident caused by spilled coffee.

As for the ops particular case. The correct way to appeal is to first write to the local Super to outline why you feel you should not have received a ticket. He will talk to the relevant Garda and decide on wether it should be cancelled. If you have no luck with that then you can decline to pay the fine and fight your case in court.

How about passengers, should we ban them too???

Also in relation to appealing, the correct way to appeal is to take the matter to court and have the Garda held to account for his decision, not to waste garda time with a Super who is just going to stand behind his own man no matter what you say.

If more people did this, we wouldn't have these kind of woodenheaded decisions being made by a Garda who was in a snot with the rest of the world today because he didn't get the ride last night.

If the Garda was doing his job properly, he would have made some attempt to investigate this a little further.

At the end of the day, if we were to run with this notion of "absolute discretion" which I see one Garda on here is advocating, then we would have to accept that we live in a world where having a conversation with your passenger could be interpreted as driving without due care and attention and would be a summary offence, which you get a penalty for without even getting to see a judge. This is as close to living in a nanny state as you can probably come to. When a Garda is going around with in his head that driving while having a coffee cup in the car ought to be an offence, then this is the sign that reason and common sense has gone completely out the window.

MagicSean

HellFireClub wrote: »

How about passengers, should we ban them too???

If they are distracting you from driving then you shouldn't have them in the car.

HellFireClub wrote: »

Also in relation to appealing, the correct way to appeal is to take the matter to court and have the Garda held to account for his decision, not to waste garda time with a Super who is just going to stand behind his own man no matter what you say.

If more people did this, we wouldn't have these kind of woodenheaded decisions being made by a Garda who was in a snot with the rest of the world today because he didn't get the ride last night.

I've seen many tickets cancelled by Superintendents but I'm sure you know better. How are you holding the Garda to account by going to court? It's not like Gardaí keep scores of their court cases. If the judge rules against him then he'll get on with his life without any bother.

HellFireClub wrote: »

If the Garda was doing his job properly, he would have made some attempt to investigate this a little further.

What investigation is there for an offence of holding a phone? Either you see them holding it or you don't.

HellFireClub wrote: »

At the end of the day, if we were to run with this notion of "absolute discretion" which I see one Garda on here is advocating, then we would have to accept that we live in a world where having a conversation with your passenger could be interpreted as driving without due care and attention and would be a summary offence, which you get a penalty for without even getting to see a judge. This is as close to living in a nanny state as you can probably come to. When a Garda is going around with in his head that driving while having a coffee cup in the car ought to be an offence, then this is the sign that reason and common sense has gone completely out the window.

It's only an offence if it effects your driving. But I see what your saying. Would you also like drink driving to be legalised or is that ok?

mikelo303

Seanbeag1 wrote: »

I was not aware we worked on commission. Thank you for informing me.



If a person uses a GPS in a way that affects their driving they will get a ticket. It is the same offence which use to cover the mobile phones. I would be in agreement with foinse on this one. Every distraction should be banned coffee, breakfast roll, earphones (wtf), make-up. All it takes is for your attention to be taken for a few seconds and someone can end up hurt or killed. It was not too long ago I attended an accident caused by spilled coffee.

As for the ops particular case. The correct way to appeal is to first write to the local Super to outline why you feel you should not have received a ticket. He will talk to the relevant Garda and decide on wether it should be cancelled. If you have no luck with that then you can decline to pay the fine and fight your case in court.

Thanks for reply. I am just dissapointed that is all. Commision or not handling tickects like crazy for such things does not help Gardai reputation. Furthermore if normal person (not a Garda officer) wold act in similar fassion normally I would call him a d*ck. That was simple as that. Why being such angry, rude and ignorant from very beggining? He clearly have seen that it was just a second while being in complete stop in traffic. He could simply give me a warning or evan a ticket but at least he could act like a proffesional. I was terated like I was some criminal beating up somebody.

I understand stress of your work I think but that is not justyfying to act like total je*rk. Deos not Garda officers have something called common sense? Being a human? Being a normal person that warns and helps and not just throwing tickets like that. I had bigger picture about Garda officers until this point. And I am trully dissapointed.

Thank you for advice about writing a letter first.

Last thing. I think is very unfair that if you want to defend your opinion in court you are just on entry in 80% on lost position. That if you loose you are not just paying a ticket but you probably will have to pay much more even up to 2000. Isin't that a scare tactic just to pay ticket and shut up or you will lloose much much, more? Let's say I win. Max I get is not to pay a ticket. It sould be equal for me to be able to sue Garda officer on the other hand for created stress and for wasting my time. Simple saying, If I go to court I will probably loose and loose much more than a ticket. If I win I win only ticket fee.

Finnbar01

Seanbeag1 wrote: »

Yes.

Are you for real? How are parents going to drop kids off school say, Or pick them up from football practise?

If we followed your suggestion to its logical conclusion, we would have to ban radios, GPS and people even scratching themselves whilst in charge of a vechile.

Finnbar01

mikelo303 wrote: »

Thanks for reply. I am just dissapointed that is all. Commision or not handling tickects like crazy for such things does not help Gardai reputation. Furthermore if normal person (not a Garda officer) wold act in similar fassion normally I would call him a d*ck. That was simple as that. Why being such angry, rude and ignorant from very beggining? He clearly have seen that it was just a second while being in complete stop in traffic. He could simply give me a warning or evan a ticket but at least he could act like a proffesional. I was terated like I was some criminal beating up somebody.

I understand stress of your work I think but that is not justyfying to act like total je*rk. Deos not Garda officers have something called common sense? Being a human? Being a normal person that warns and helps and not just throwing tickets like that. I had bigger picture about Garda officers until this point. And I am trully dissapointed.

Thank you for advice about writing a letter first.

Last thing. I think is very unfair that if you want to defend your opinion in court you are just on entry in 80% on lost position. That if you loose you are not just paying a ticket but you probably will have to pay much more even up to 2000. Isin't that a scare tactic just to pay ticket and shut up or you will lloose much much, more? Let's say I win. Max I get is not to pay a ticket. It sould be equal for me to be able to sue Garda officer on the other hand for created stress and for wasting my time. Simple saying, If I go to court I will probably loose and loose much more than a ticket. If I win I win only ticket fee.

You've had a nasty experience with one member of the Gardaí but don't go judging them all. I've had a nasty experience with one as well but I don't tar and feather the lot of them with the same brush.

Just put it down to experience, albeit a bad one and move on. In future, maybe carry around some chocolate with you. I often find that workls wonders when dealing with them. Lols.