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Using your phone while driving: when is a phone not a phone?

An offence to use your phone while driving.

Using your phone while driving: when is a phone not a phone? We all, or we should, know that it is an offence to use our phones when driving. S41 (D) of the Road Traffic Act 1988 makes it is an offence to use a handheld mobile telephone or other handheld interactive communication devices when driving.

But what if you are not actually using your phone to make a call?

In a recent judgement from the High Court in the case of DPP -v- Barreto it was held that using a mobile telephone to take a photograph or film was not “using” a mobile phone so far as the law was concerned.  The reasoning behind this is complicated because the law also prohibits the use of an interactive communication device and makes no distinction between a mobile telephone and any other interactive communication device.

In simple terms, however, if you use your mobile telephone when driving to make a telephone call then you are guilty of an offence.  If you use it to record video footage or to skip through tracks of music then you are not guilty.

If you read an email or a text it would seem you are not guilty of using a mobile telephone but if you send an email or a text you would be.

So I can use my phone to check my emails while I am driving and escape prosecution?

This does not mean that you would be not guilty of any offence.  You could be charged with driving without due care and attention.  You could be charged with dangerous driving in certain circumstances.

However just simply “using” your telephone whilst driving does not, in layman’s language, mean that you are “using” the telephone so far as the law is concerned.

John Goodwin is a director and criminal solicitor at Cohen Cramer Solicitors: 12/08/19

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