Okanagan lawyer weighs in on recent distracted driving cases

Don’t touch the phone and keep it secure is an Okanagan lawyer’s advice following recent distracted driving cases that have been taking over the headlines the past few weeks.

Defence Lawyer Joe Gordon of Gordon and Company law firm in Kelowna, has defended dozens of Okanagan drivers hit with distracted driving tickets over the past 10 years.

In an interview with Vernon Matters, Gordon says it’s important for people to understand a few things about the province’s distracted driving laws.

“The Crown in prosecuting someone for distracted driving is not required to prove whether the cellphone or electronic device is capable of receiving or transmitting, it is the handling of the device and the use that is relevant,” Gordon said.

Under the Motor Vehicle Act, use is considered looking at the device and holding it in a position where it may be used. That means simply glancing over or touching the device while in a moving vehicle could warrant an offence.

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Gordon adds he’s seen cases where drivers were still ticketed despite having a dead phone battery.

When asked if distracted driving laws in the province need to change, Gordon said there needs to be a different test applied to determine an offence.

“I think the line of thinking that says it’s distracting that you can’t even look at a dead phone, I think it should be a two-part test, that you should be looking or using something that’s capable of being used,” he said.

There are some ways people can legally use their electronic devices while driving. The Motor Vehicle Act allows electronic devices, such as phones and GPS systems as long as they are properly secured, and not obstructing the driver’s vision to the front or sides of the vehicle.

Last week a 71-year-old Vancouver woman made headlines after Vancouver police ticketed her for having her cellphone in the cupholder of her vehicle.

The VPD have since retracted the ticket, but Gordon said the woman’s story is a strong reminder to keep devices secure while driving.

“Her mistake is having it flopping around loose in the cupholder. You can buy devices that you can clip it into the motor vehicle,” he said.

The same can be said with a story Vernon Matters first broke about a Kelowna man whose phone slipped out of the centre console while he was using it as a GPS.

The Judicial Justice in the case stated that “in order to use it, it cannot be in hand and must be secured to the motor vehicle.”

A full memo detailing the do’s and don’ts of distracted driving can be found here.