Distracted driving acquittal overturned

B.C.’s highest court has determined that a person with a cellphone that has disabling software cannot use that as a defence against distracted driving.

The finding by the B.C. Court of Appeal was made in the case of a Vancouver Island man found not guilty of distracted driving, despite the fact he was seen by police holding a cellphone on top of his steering wheel.

In the ruling released Monday, a three-judge panel of the court set aside the acquittal of Patrick Forster Tannhauser and ordered that a new trial be held.

On Aug. 27, 2017, Tannhauser was ticketed for using an electronic device while driving his white pickup near the Helmcken overpass in View Royal near Victoria.

Tannhauser testified that his employer had given him a cellphone with programmed software that disables a phone when a vehicle is in motion. He said he was reaching for some papers on his passenger seat and the smartphone was on top of the paperwork. To get the phone out of the way, he picked it up with his right hand, transferred it to his left hand and put it on the dash, he said.

Tannhauser said the screen wasn’t lit and he had no intention of using the phone.

The issue at his trial in May 2018 was whether his cellphone was being held in a position in which it may be used. He argued it couldn’t be used because of the disabling software.

A judicial justice accepted his argument and acquitted him.

The Crown appealed the acquittal, but a B.C. Supreme Court judge dismissed that appeal, finding the judicial justice was correct to conclude that the infraction hadn’t happened.

The Crown appealed the case again, this time to the B.C. Court of Appeal.

The issues on the second appeal were whether a cellphone with no immediate functionality is an “electronic device” as defined under the law and whether a device with no immediate functionality can be held in a position in which it may be used.

In his reasons for judgment, B.C. Court of Appeal Chief Justice Robert Bauman said the answer to the two questions was in the affirmative.

Bauman ordered a new trial, if the Crown wishes to proceed. Justice Lauri Ann Fenlon and Justice Gregory Fitch agreed with him.