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

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245

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    #32
    HellFireClub
    Closed Accounts Posts: 3,912 ✭✭✭HellFireClub


    Seanbeag1 wrote: »
    If they are distracting you from driving then you shouldn't have them in the car.



    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.



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



    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?

    A passenger engaging you in conversation, is clearly a distraction. You cannot have a conversation with a passenger that does not distract you, because once you start listening to a passenger, you are concentrating on something else besides the road you are driving on. I'm driving 20 years and I don't accept that the average driver who takes care when driving, would agree that passengers should be banned.

    If this was to be the case, you don't get to make that decision, (unless we live in a police state as appears to be the case going by this thread), it get's made by democratically elected parlimentarians and you enforce the laws they give you to enforce.

    There is no law in this state that says it is an offence to drive while using a GPS system. Therefore the Garda in this case is incompetent, and that is backed up by his unprofessional behaviour at the scene.

    I had a smoothie this morning for breakfast, I took a banana, a punnet of strawberries, a punnet of blackberries, some natural yogurt and mixed and then blended them together in a bowl.

    When I sat down to drink it, I was no longer holding a banana or a yogurt or a punnet of strawberries, I was holding something completely different. If it had been a crime in this country this morning to be caught holding a punnet of strawberries, I don't believe I could have been convicted if I was caught drinking my smoothie this morning. ;)


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    #33
    HellFireClub
    Closed Accounts Posts: 3,912 ✭✭✭HellFireClub


    Finnbar01 wrote: »
    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.

    Yeah, and having a pair of títs also helps. ;)


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    #34
    seamus
    Registered Users Posts: 68,317 ✭✭✭✭seamus


    HellFireClub wrote: »
    When I sat down to drink it, I was no longer holding a banana or a yogurt or a punnet of strawberries, I was holding something completely different. If it had been a crime in this country this morning to be caught holding a punnet of strawberries, I don't believe I could have been convicted if I was caught drinking my smoothie this morning. ;)
    That depends on how the law defines a "punnet of strawberries". If it was defined as "A quantity of strawberries, whole or chopped, and mixed or unmixed with other fruits", then you would in fact be holding a "punnet of strawberries" in the legal sense.

    Your comparison is pointless. A mobile phone is still a mobile phone, even when the GPS function is the primary one in use.

    See my quote from the relevant statute above.


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    #35
    charlemont
    Closed Accounts Posts: 4,725 ✭✭✭charlemont


    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.

    But only for us Joe Soaps,,, The amount of people I see when driving using their phones is unbelievable. So OP I dont think you should have got a ticket for that, its not like your on a motorway doing 120KM while holding a phone.


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    #36
    HellFireClub
    Closed Accounts Posts: 3,912 ✭✭✭HellFireClub


    seamus wrote: »
    That depends on how the law defines a "punnet of strawberries". If it was defined as "A quantity of strawberries, whole or chopped, and mixed or unmixed with other fruits", then you would in fact be holding a "punnet of strawberries" in the legal sense.

    Your comparison is pointless. A mobile phone is still a mobile phone, even when the GPS function is the primary one in use.

    See my quote from the relevant statute above.

    Well I'd argue that a mobile phone is no longer a mobile phone when it is clearly a subcomponent and a narrow specific element of a completely different type of product that happens to be capable of functioning as a mobile phone, or also not capable of functioning as a mobile phone, depending on what mode it is operated in.

    My laptop is capable of operating as a mobile phone via Skype. Is it a mobile phone??? NO!!!


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    #37
    littlemac1980
    Registered Users Posts: 1,073 ✭✭✭littlemac1980


    Come on people, you're missing the point completely. It is against the law to hold a mobile phone while in control of a mechanically propelled vehicle. Thats the issue.

    It doesn't matter that it was being used at the time as a GPS, or as an mp3 player, or even if it was being used as a make-shift mirror or a hammer or anything else. If it falls within the legal definition of a mobile phone, as pointed out by a previous poster earlier, then holding it is against the law.

    The Gardaí have nothing to do with making the law. Their only purpose is to enforce it. We the people make the law through our elected representatives, and the Judges check it has been correctly applied.

    If in this case, there was a mobile-phone (which it seems there was) which was being held (which it appears it was) while the holder was in control of a mechanically propelled vehicle ( which it appears he was ) = Offence complete - and a garda saw that (which it seems was the case) then thats why the OP was charged.

    Debating whether or not smoothies, or children, or passengers, or mars bars, or shoe laces, or radios or anything else should also be illegal has nothing to do with the fact there is in force a law against holding a mobile phone while in control of a mechanically propelled vehicle.


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    #38
    kirving
    Registered Users Posts: 5,969 ✭✭✭kirving


    So, you want to ban every single distraction possible while driving, to make it safer.

    Ok.

    No Radio.
    No GPS.
    No Massage Seats.
    No Passengers.
    No Loose Objects.
    No Hands-free Phones.
    No Nice cars, as they could distract other road users.
    No brightly coloured cars, same.
    No advertising near roads whatsoever.
    No Noise.

    See, it's slightly impractical to sit on a high hourse and ban all distractions. We may as well just walk everywhere at that rate.

    The guy was using his GPS while stopped in traffic. Even if he looked at his phone while stopped, it's still harsh.


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    #39
    HellFireClub
    Closed Accounts Posts: 3,912 ✭✭✭HellFireClub


    littlemac1980 wrote: »
    Come on people, you're missing the point completely. It is against the law to hold a mobile phone while in control of a mechanically propelled vehicle. Thats the issue.

    It doesn't matter that it was being used at the time as a GPS, or as an mp3 player, or even if it was being used as a make-shift mirror or a hammer or anything else. If it falls within the legal definition of a mobile phone, as pointed out by a previous poster earlier, then holding it is against the law.

    The Gardaí have nothing to do with making the law. Their only purpose is to enforce it. We the people make the law through our elected representatives, and the Judges check it has been correctly applied.

    If in this case, there was a mobile-phone (which it seems there was) which was being held (which it appears it was) while the holder was in control of a mechanically propelled vehicle ( which it appears he was ) = Offence complete - and a garda saw that (which it seems was the case) then thats why the OP was charged.

    Debating whether or not smoothies, or children, or passengers, or mars bars, or shoe laces, or radios or anything else should also be illegal has nothing to do with the fact there is in force a law against holding a mobile phone while in control of a mechanically propelled vehicle.

    Only if you insist upon having the audacity to take the matter to court yourself under the threat of seriously increased penalties. I'd have no issue with these kind of fixed penalty solutiuons if you had access to justice. In this case, the Garda is the judge, unless you call his bluff and tell him you'll take your chances in court and force him to prosecute you properly!

    This causes what has happened here, which is lazy, beliggerant and unprofessional policing that is a scourge upon society I think...


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    #40
    Finnbar01
    Registered Users Posts: 2,070 ✭✭✭Finnbar01


    HellFireClub wrote: »
    Yeah, and having a pair of títs also helps. ;)


    Would man boobs do?


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    #41
    HellFireClub
    Closed Accounts Posts: 3,912 ✭✭✭HellFireClub


    Kevin Irving wrote: »
    So, you want to ban every single distraction possible while driving, to make it safer.

    Ok.

    No Radio.
    No GPS.
    No Massage Seats.
    No Passengers.
    No Loose Objects.
    No Hands-free Phones.
    No Nice cars, as they could distract other road users.
    No brightly coloured cars, same.
    No advertising near roads whatsoever.
    No Noise.

    See, it's slightly impractical to sit on a high hourse and ban all distractions. We may as well just walk everywhere at that rate.

    The guy was using his GPS while stopped in traffic. Even if he looked at his phone while stopped, it's still harsh.

    I find the noise that the tyres make to be a distraction, can we get them banned as well???


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    #42
    HellFireClub
    Closed Accounts Posts: 3,912 ✭✭✭HellFireClub


    Finnbar01 wrote: »
    Would man boobs do?

    Hasn't worked for me yet, but in fairness to the cop, I'm only an A cup! :D


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    #43
    Finnbar01
    Registered Users Posts: 2,070 ✭✭✭Finnbar01


    HellFireClub wrote: »
    Hasn't worked for me yet, but in fairness to the cop, I'm only an A cup! :D

    Well if there's more than a handful there, I fail to see why he wouldn't be interested. ;)


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    #44
    littlemac1980
    Registered Users Posts: 1,073 ✭✭✭littlemac1980


    HellFireClub wrote: »
    Only if you insist upon having the audacity to take the matter to court yourself under the threat of seriously increased penalties. I'd have no issue with these kind of fixed penalty solutiuons if you had access to justice. In this case, the Garda is the judge, unless you call his bluff and tell him you'll take your chances in court and force him to prosecute you properly!

    This causes what has happened here, which is lazy, beliggerant and unprofessional policing that is a scourge upon society I think...

    Well if you check back, it was I who first brought up the point about the fixed penalty charge versus the statutory penalty, so of course I understand your point, but the law is the law, its application may be harsh in certain circumstances, but Guards have an obligation to enforce it, and that obligation is owed to each of us.

    AFAIK, the actual penalty for the offence is upto €2000, the fixed penalty charge is a concession amount to pay for administrative costs, and is a waiver of the actual statutory fine, which is on balance a far better prospect for an offender than having to face the statutory penalty regardless.


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    #45
    HellFireClub
    Closed Accounts Posts: 3,912 ✭✭✭HellFireClub


    littlemac1980 wrote: »
    Well if you check back, it was I who first brought up the point about the fixed penalty charge versus the statutory penalty, so of course I understand your point, but the law is the law, its application may be harsh in certain circumstances, but Guards have an obligation to enforce it, and that obligation is owed to each of us.

    AFAIK, the actual penalty for the offence is upto €2000, the fixed penalty charge is a concession amount to pay for administrative costs, and is a waiver of the actual statutory fine, which is on balance a far better prospect for an offender than having to face the statutory penalty regardless.

    And it's very much open to interpretation. It's also enforced by people who I would argue would often very rarely be the smartest tools in the box, as appears to be the case here.


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    #46
    seamus
    Registered Users Posts: 68,317 ✭✭✭✭seamus


    HellFireClub wrote: »
    that happens to be capable of functioning as a mobile phone
    Case closed. What you consider to be or not be a mobile is irrelevant. The law clearly defines what constitutes a mobile phone. It's that simple. You would have no grounds to challenge it. There is no interpretation here. Is it portable? Is it capable of receiving or making calls? Yes. Therefore it's a mobile phone under the law.
    My laptop is capable of operating as a mobile phone via Skype. Is it a mobile phone??? NO!!!
    But by Jaysus I would hope that you'd be nailed to the wall for using one while driving.


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    #47
    mcmoustache
    Registered Users Posts: 7,236 ✭✭✭mcmoustache


    seamus wrote: »

    Your comparison is pointless. A mobile phone is still a mobile phone, even when the GPS function is the primary one in use.

    See my quote from the relevant statute above.


    Quote:
    “ 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
    seamus wrote: »
    "Capable" being the operative word. The device is "capable" of making calls, even when that capability has been temporarily disabled.


    Can a device be capable when it isn't capable? I'm not arguing either way, just curious.

    For example, when the gps is switched on, the communication functionality might not exist. Obviously this is temporary.

    Another example would be a gps/phone that isn't working due to damage. This is temporarily and possibly permanently disabled. Would this still be a communication device as defined above?

    Yet another example would be holding a phone with no battery or a dead battery inside.

    Would these examples legally meet the definition that you provided above?


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    #48
    littlemac1980
    Registered Users Posts: 1,073 ✭✭✭littlemac1980


    HellFireClub wrote: »
    And it's very much open to interpretation. It's also enforced by people who I would argue would often very rarely be the smartest tools in the box, as appears to be the case here.

    And you're right of course, and if it weren't for the point you are making, thousands of solictors and barristers and judges too in this country wouldn't be gainfully employed. And Thousands of cases wouldn't be held in favour of the Defendants every year. Interpreting the Law is precisely what Judges do on a day-to-day basis.

    However, you may find that a Judge in the High Court has already interpreted that a Mobile Phone is still a Mobile Phone if it also a GPS system and is being used as such at the time of the offence, or if they haven't yet, based on a literal interpretation of the relevant legislation, it may appear more likely than not that that is how a Judge would so interpret the definition of a mobile phone for the purposes of the offence.


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    #49
    HellFireClub
    Closed Accounts Posts: 3,912 ✭✭✭HellFireClub


    seamus wrote: »
    But by Jaysus I would hope that you'd be nailed to the wall for using one while driving.

    That I may be, but not pursuant to section 3(1) of the 2006 Road Traffic Act that we are discussing here. ;)


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    #50
    HellFireClub
    Closed Accounts Posts: 3,912 ✭✭✭HellFireClub


    littlemac1980 wrote: »
    And you're right of course, and if it weren't for the point you are making, thousands of solictors and barristers and judges too in this country wouldn't be gainfully employed. And Thousands of cases wouldn't be held in favour of the Defendants every year. Interpreting the Law is precisely what Judges do on a day-to-day basis.

    However, you may find that a Judge in the High Court has already interpreted that a Mobile Phone is still a Mobile Phone if it also a GPS system and is being used as such at the time of the offence, or if they haven't yet, based on a literal interpretation of the relevant legislation, it may appear more likely than not that that is how a Judge would so interpret the definition of a mobile phone for the purposes of the offence.

    But the system has piled up the odds against you to take the matter to court, so there is probably a very small stack of caselaw that exists in relation to this issue, because most people will take the 2 points and the 60 Euro fine because they couldn't be arsed with a court trial.

    Are you trying to tell me that this set up doesn't actually encourage Gardai to play lose and fast with the law, or whatever their own particular interpretation of the law may happen to be on the day, because they know the vast vast majority of people will take 2 points and pay 60 quid and give out fúck for a week rather than make the Garda take a proper prosecution?!?

    Then bring it back to the incident at hand, the OP was using a GPS system and ended up feeling like he was caught with class A drugs, meanwhile the driver in the car in front of him with the exact same functionality, doing the exact same thing, is beyond prosecution because the GPS system was factory fitted by the manufacturer?!?

    That certainly doesn't sound like effective justice to me.


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    #51
    Cunning Alias
    Registered Users Posts: 782 ✭✭✭Cunning Alias


    The OP mentioned that he was in "full stop" when he touched the phone. How does this differ from pulling and stopping somewhere to make a call? (with the car still running)


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    #52
    Zambia
    Closed Accounts Posts: 7,333 ✭✭✭Zambia


    The law has clearly been worded to indicte you should just leave the phone alone while in charge of a vehicle. If you just do that you would be right. If you wished to use it as a GPS it should be mounted in a commercial holder.


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    #53
    dillo2k10
    Registered Users Posts: 1,397 ✭✭✭dillo2k10


    Cunning Alias wrote: »
    The OP mentioned that he was in "full stop" when he touched the phone. How does this differ from pulling and stopping somewhere to make a call? (with the car still running)

    And if the handbrake was used and the car was out of gear then they would not be incharge of a vehicle.


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    #54
    Cunning Alias
    Registered Users Posts: 782 ✭✭✭Cunning Alias


    dillo2k10 wrote: »
    And if the handbrake was used and the car was out of gear then they would not be incharge of a vehicle.

    That is my thinking. Just yesterday, I pulled into a side road to return a call I missed while driving. That can't possibly be illegal.


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    #55
    dillo2k10
    Registered Users Posts: 1,397 ✭✭✭dillo2k10


    Cunning Alias wrote: »
    That is my thinking. Just yesterday, I pulled into a side road to return a call I missed while driving. That can't possibly be illegal.

    I always do, anytime my phone rings if I dont have the headset on I pull in as soon as its safe and answer, the car is still started and Im still on the road.


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    #56
    listermint
    Registered Users Posts: 33,895 ✭✭✭✭listermint


    littlemac1980 wrote: »

    If in this case, there was a mobile-phone (which it seems there was) which was being held (which it appears it was) while the holder was in control of a mechanically propelled vehicle ( which it appears he was ) = Offence complete - and a garda saw that (which it seems was the case) then thats why the OP was charged.


    Am I missing something or was the phone in a holder and not in the OP's hand, unless the story changed it was not being cradled held or otherwise on the OP's person. It was in a holder?

    Am I missing something, did i read wrong?


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    #57
    HellFireClub
    Closed Accounts Posts: 3,912 ✭✭✭HellFireClub


    Zambia wrote: »
    The law has clearly been worded to indicte you should just leave the phone alone while in charge of a vehicle. If you just do that you would be right. If you wished to use it as a GPS it should be mounted in a commercial holder.

    The law at the time was written to mean a mobile phone type electronic device that could be construed as being nothing else in nature, other than a mobile phone, used for communicating to someone by voicemail or by texting them.

    That had a crystal clear meaning back in 2006. It does not have as clear a meaning in 2011, when it could be argued that the same device was an onboard GPS/navigation system that could have been critical to the OP getting safely to their destination.


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    #58
    littlemac1980
    Registered Users Posts: 1,073 ✭✭✭littlemac1980


    mikelo303 wrote: »
    HI,

    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 did not even rised it to my ear or anything, Ijust simply reached for it. All action took about one second.
    listermint wrote: »
    Am I missing something or was the phone in a holder and not in the OP's hand, unless the story changed it was not being cradled held or otherwise on the OP's person. It was in a holder?

    Am I missing something, did i read wrong?

    Well I'd say its unclear, but my understanding of those comments are that the OP is playing down (obviously) the contact with the phone, and though I believe that he did not raise it to his ear. It would be very difficult to say he could readjust the position of it with out having to hold it at some point, even if doing so without raising it.

    I could be wrong, of course, its not for me to say one way or the other, but he hasn't definitively denied holding it in my opinion. It certainly doesn't appear it was in a holder - just a cup holder. But of course the argument could be made that he wasn't holding it as defined in the legislation.


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    #59
    Jicked
    Closed Accounts Posts: 101 ✭✭Jicked


    How could a cup holder not be conisder being attached to the car? It does the exact same job as a purchased "car kit" (i.e. a bit of plastic sticking out of the dash/front panel in which you can place an object which will be held in place, even if it slightly looser a grasp then a purchased carkit).

    If a Garda tried to issue me a ticket when touching my phone/gps in that situation I'd be more than happy to see him court. Ridiculous bit of overly-officious policing and I can't help but laugh at some responses such as the first to the OP.


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    #60
    Zambia
    Closed Accounts Posts: 7,333 ✭✭✭Zambia


    HellFireClub wrote: »
    The law at the time was written to mean a mobile phone type electronic device that could be construed as being nothing else in nature, other than a mobile phone, used for communicating to someone by voicemail or by texting them.

    That had a crystal clear meaning back in 2006. It does not have as clear a meaning in 2011, when it could be argued that the same device was an onboard GPS/navigation system that could have been critical to the OP getting safely to their destination.

    The device is a mobile phone what you use it for does not matter.


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    #61
    mikelo303
    Registered Users Posts: 45 ✭mikelo303


    Finnbar01 wrote: »
    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.

    Yeah. I know. I am calm now. It was jus very annoying to get ticket like that. I will not judge them all. And I am not planning to be an as*hole now just because of that to all of them. Just hitting me with ticket like that was unfair and little rude in my eyes. I will buy holder to my car and I will still use my gps like I did before. I have driving lcence for 12 years and I travel a lot. I can't imagine not be able to use gps phone or not. Just paying fine like this is for me waste of money. I would preffer to say to tge garda, listen I promise not to do it and I will buy dedicated gps for that money. Problem solved, money well spend, lesson learned.

    Anyway, thanks for all your replies.


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