Mobile myth busting: “if I text someone who is driving will I go to prison?”

I have been participating in an online debate about the offence of using a mobile phone and it seems there is confusion and misinformation over what constitutes an offence, and what does not. Courts certainly view it seriously.

I have been participating in an online debate about the offence of using a mobile phone and it seems there is confusion and misinformation over what constitutes an offence, and what does not.

Courts view it seriously. Research suggests you are four times more likely to crash if you use a mobile phone while driving. Reaction times for drivers using a phone are around 50% slower than normal driving.

Police figures have illustrated that around 200,000 UK drivers are prosecuted for the offence annually, with more than 171,000 fixed penalty notices issued for the year ending October 2011, and an increase of 4,000 of the previous total recorded in 2006. An increase in the fixed penalty from £60 to between £80 and £100 is likely later this year.

A conviction can bite because it brings a fine, 3 points and a discretion to disqualify. The fine is much higher for drivers of goods vehicles and those adapted for carrying more than 8 passengers.

The exact legal position is that it is an offence to drive a motor vehicle on a road if at the same time the driver is using:

• a hand held mobile phone
• a device which performs an “interactive communication function by transmitting and receiving data”

A device is deemed to be a hand held one if at the time of its use it was being held. So if you have a hands free device in your hand, it is no longer hands free. A device performing interactive communication functions covers all smartphones whether being used to e mail, text or to photograph.

The same legislation also creates two other connected offences, namely causing or permitting a driver to use such a device, and supervising a learner whilst using such a device. You will cause or permit a driver to use a phone if for example you hold it to his ear as he drives. Employers may be open to prosecution if they require employees to make or receive calls whilst driving.

Offences committed whilst supervising a learner need no explanation.

So these are the three criminal offences connected with the use of a mobile device.

It’s not an offence to cycle and use a hand held mobile phone. However it is possible to be prosecuted for careless or dangerous cycling.

A defence is available for emergency calls. The police officer usually asks the driver at the time he is stopped if he was making an emergency call.

The offence is committed when using such a device. It is not an offence to simply have a mobile in your hand, and I have read much misinformation about this. One mobile phone company I have been obtaining records from recently insists wrongly that simply to hold is an offence; it is not, and a prosecutor must introduce evidence of actual use. That usually comes from a police officer who saw the driver holding a phone and speaking. In serious cases involving accidents phone records can be obtained and can lead to an allegation of dangerous driving.

People sometimes ask if it’s permissible to use a mobile whilst stationary and the answer is that it depends on the circumstances.

The offence is using whilst driving and whether someone is “driving” in the context of many road traffic offences road traffic offences is quite widely defined. You do not need to be moving to be driving and so for example if you are stationary in traffic or in a jam, you are very likely to be “driving” and thereby commit an offence.

However, if it is obvious you have pulled over or are parked up and will not be moving, no offence is committed. This ought to be obvious to the police.

Defending such prosecutions is not straightforward. The prosecution must produce evidence of use, and seeing such cases in court one can be forgiven for thinking that the evidential burden is on the driver to prove he wasn’t using a mobile device. Most cases involve a police officer and a sighting of the driver speaking to a phone held to his ear, and such unchallenged evidence will be sufficient.

But officers do make mistakes. I hear drivers say they offered to show the phone to police who stopped them so the record can be seen there and then, and were met with a refusal. From what I can tell this seems quite common, although I don’t understand why. If records showing no telephone activity are produced in court this can all provide fertile cross examination material. The court only needs to conclude that the officer might have been mistaken and the driver is entitled to be acquitted.

And no, if you text someone while they are driving you do not commit an offence and you will not go to prison!