The law surrounding the use of mobile telephones causes more uncertainty than almost any other road traffic offence.
It can be serious as it now carries 6 penalty points.
Most drivers face a prosecution for “driving a motor vehicle on a road when using an interactive communication device, namely a hand-held mobile device.” This is standard terminology.
The relevant legislation is Regulation 110 of the Road Vehicles (Construction and Use) Regulations 1986 and section 41 D of the Road Traffic Act 1988.
Nearly every prosecution I have come across has started life with a police officer insisting he saw the driver using a hand-held mobile telephone. Police sometimes get this wrong.
Of course, a prosecution may be very straightforward. If a motorist is holding a mobile device in his hand and texting, speaking or using the Internet the offence is committed.
However, an offence may not be committed if a device is held in the hand but none of its interactive function is being used. For example, if you have the interactive function switched off but hold the device to check the time or something similarly innocuous, you would have a good argument that the legislation has not been breached. It has been interpreted as legislation to deal with the use of an interactive function, not something that has no interactive function at all. An iPod looks like a phone but it may not be interactive.
Mobile telephone use is something the police are really targeting, and they see it sometimes when it simply doesn’t exist. I have represented a number of drivers prosecuted, and acquitted, for holding a device to the ear when they were actually using headphones, with the mobile telephone untouched. The police sometimes make mistakes and evidence of identification can be crucial.
I can advise and help if you face such a prosecution.
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