IS IT DISTRACTED DRIVING WHEN YOUR PHONE IS DEAD?
Lawmakers may have to go too far to go far enough to eradicate phone use in cars, write David Booth and Lorraine Sommerfeld.
David Booth: We all know that distracted driving is dangerous — as dangerous as drunk driving, if the statisticians aren’t lying to us. We also know that the lion’s share of distracted driving results from our seeming inability to distance ourselves from our cellphones.
We’re glued to screens all day, and rather than seeing the steering wheel as respite, we keep trying to sneak glances at our phones. That’s why every province has enacted fines — hefty fines — for iPhoning-while-driving. But a recent ruling in British Columbia is perhaps a punishment too far in our war against driving while distracted.
It seems B.C. resident Patrick Grzelak was stopped while driving with earphones while connected to his iPhone. He was stopped for distracted driving. What makes this particular infraction newsworthy is that, as it turns out, his iPhone was dead. As in, no music, incoming calls, or text messages dictated through Siri. Nonetheless, Justice Brent Adair found Grzelak contravened the Motor Vehicle Act because his phone was “in a position in which it may be used.”
Lorraine Sommerfeld: You can be busted for having your dead cellphone near you?
Whoa up. This isn’t exactly as advertised. Patrick Grzelak had his phone tucked into a cubby on the dash of his Mercedes-Benz. He also had two earbuds in place. When pulled over by police, he told them the battery on the phone was dead, ergo he couldn’t have been using a hands-free device at all, let alone illegally.
Except in British Columbia, it’s illegal to drive with two earbuds in. You are only allowed to have one. So, Grzelak could have been busted right there. Also, that hand-held device is supposed to be in the owner’s pocket or securely fastened to the vehicle in a special cellphone holder. I’m guessing “tucked into a cubby in my Benz” is not a special holder.
You can only have that lone earbud to use a Bluetooth feature on your phone. Music must be put through the vehicle’s sound system.
In Ontario, it’s not specifically illegal to use two earbuds, but cops will use other sections of the Highway Traffic Act if you fail to pull over for emergency sirens you can’t hear. The spirit of the law is the same in both places; it’s about being aware of your surroundings.
Grzelak’s argument was that a dead battery negates all the laws. I could drive a truck through the holes in that claim
DB: The key phrase for me in this whole rigmarole is this: “in a position in which it may be used.” Please explain to me how your “special cellphone holder” — I assume you mean those wobbly doohickeys that mount to your dashboard — is any less a position in which it may be used than that aforementioned cubby. Come to think of it, how is a pocket any less accessible? And how am I any safer on the road if Grzelak is pushing “accept” on a dashboard touch screen rather than on his iPhone?
LS: A little background on this case from a cop I know: in Ontario the police don’t have search authority to determine if the phone was charged or functional. It’s virtually impossible for Grzelak to prove his phone was dead when he was pulled over.
And, come on David, who has in earbuds to listen to nothing? This is simply not the case to provide the “my constitutional rights have been deeply offended” hill to die on.
DB: I agree it seems suspicious that Grzelak’s earbuds were in while the iPhone was out of commission. But what continues to bother me, why I do think this might be a “my constitutional rights” thing, is the sheer arbitrariness of both the law and Justice Adair’s ruling. The difference between an approved mount and resting in a cupholder is a slim distinction on which to form intent. If something is really that dangerous inside a car — i.e. a firearm or an open container of alcohol — then it should be banished to the car’s trunk. The cupholder-versus-bracket is a terribly thin distinction upon which to base a guilty verdict.
What I think is happening here is that the legal/political powers (rightfully) want to eradicate distracted driving, but they don’t want to face the public backlash that would occur if they banished cellphones completely from the cabin interior. What they are left with is capricious distinctions such as this, where one cellphone location is approved, another is not. I suspect that Grzelak is guilty as charged. I also think that Adair’s ruling is eminently challengeable.
LS: Stop the presses! I agree with you, David. This is about eradicating distracted driving, and like the recent introduction of Bill C-46 regarding drunk drivers, they may have to go too far to go far enough.
Driving.ca
If something is really that dangerous inside a car … then it should be banished to the car’s trunk.