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challlenging 'holding mobile phone while driving' fixed charge notice.

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  • 27-03-2015 2:02pm
    #1
    Melinka
    Registered Users Posts: 14 ✭


    One month ago, while crawling through stop and go traffic in Claregalway, I was pulled over by a guard who accused me of texting while driving. I had absolutely not been on my phone at all and told him so. I asked him to look at my text log and call log as I had not been on it. He didn't look at the phone. He took my details and warned me not to use the phone while driving to which I replied that I never do. I thought no more of it until today when I received a notice of fixed penalty offence for 'holding a mobile phone while driving'.
    It carries a fine of €60 and 3 penalty points. I rang the number to discuss and was told that I can submit an application to have it cancelled. If the application is denied I can take it to court. If the judge believes me it will be cancelled. If the judge believes the guard I will get 5 points.

    I don't want to pay it and get points for something that I didn't do but wonder if I have any chance of getting it cancelled as it seems it will come down to he said/she said.

    Does anyone have any idea if the Guards have to have any evidence other than them saying that they witnessed it? would it be feasible to have my phone records checked?

    Really any thoughts, advice, suggestions would be appreciated as I have no experience with anything like this.

    I do have a bluetooth thing in the car if that is any help at all.

    Thanks in advance!


Comments

  • Options
    #2
    Paulw
    Moderators, Society & Culture Moderators Posts: 13,381 Mod ✭✭✭✭Paulw


    Melinka wrote: »
    I don't want to pay it and get points for something that I didn't do but wonder if I have any chance of getting it cancelled as it seems it will come down to he said/she said.

    Does anyone have any idea if the Guards have to have any evidence other than them saying that they witnessed it? would it be feasible to have my phone records checked?

    Yep, it's a case of your word against theirs. Your call log and text log are useless, since the offence is for "holding a mobile phone". You don't have to be using it in any way, holding it is the offence.

    No evidence is needed, other than the Garda saying he saw you. So, it comes down to if the judge believes you or the Garda.


  • Options
    #3
    Pro Hoc Vice
    Closed Accounts Posts: 6,087 ✭✭✭Pro Hoc Vice


    You have two options ask guard to cancel the PPN, the second option is refuse to pay and then go to court when summons issues, have a hearing in DC and possible appeal to Circuit Court. It really will just be the Guard saying I saw the accused texting and you will more than likely have to go into evidence to say you did not. You could get records from your mobile company but to be honest that only proves a call or text not sent at a certain time from a certain phone. In any event that's not the issue the issue was the accused holding a mobile phone, even turning up a song, reading a webpage looking at a pic etc all involve holding a phone.


  • Options
    #4
    Ken.
    Closed Accounts Posts: 12,898 ✭✭✭✭Ken.


    If you lose in court the points go up to 5 and the fine goes up also.
    6eDp45.png


  • Options
    #5
    Topper Harley
    Registered Users Posts: 1,698 ✭✭✭Topper Harley


    Is it possible for the guard to be cross-examined in order to find out where he was and what his line of sight and distance were in order to convince the judge that it's possible the guard made a mistake?

    Guards, I assume, will have a high level of trust placed in them but that doesn't mean they are infallible and a judge would surely know this.


  • Options
    #6
    Kimbot
    Moderators, Computer Games Moderators, Social & Fun Moderators Posts: 18,433 Mod ✭✭✭✭Kimbot


    I had a case of this before a few years back and probably posted about it on here. Leaving work one day early with an ear infection and I turned out of the ind estate. I was rubbing my ear cos it was killing me. Next thing a garda car pulls me in. He walked up to the window and asked me to get out of the car and give him licence etc. I asked him why he pulled me over and he told me it was for using a mobile phone (This was in the days before smart phones). I told him that it was impossible as both my mobiles were in the glove box, one was turned off and the other was connected to my bluetooth kit in the car. He told me he seen me with my hand up at my ear so he knew that I was using a phone, I took out my prescription from my doc and told him I was just rubbing my ear but he was having none of it. Eventually he went thru both phones and even contacted the network providers to confirm and eventually he had to concede defeat and let me go. Guards can be wrong sometimes but when it comes to court the judges tend to side with them.


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  • Options
    #7
    Melinka
    Registered Users Posts: 14 ✭Melinka


    Thanks for the advice, not great news though.
    It seems a bit unfair that you are presumed guilty and really there is no way to prove yourself innocent even if you phone records show that you were not texting or talking on the phone at the time. I have requested the phone usage record from that day but still not sure what to do.

    Thanks again.


  • Options
    #8
    NoQuarter
    Registered Users Posts: 4,632 ✭✭✭NoQuarter


    Topper Harley wrote: »
    Is it possible for the guard to be cross-examined in order to find out where he was and what his line of sight and distance were in order to convince the judge that it's possible the guard made a mistake?
    .

    Yes, absolutely.

    OP, were you holding your phone though? Or cradling it in your hand?

    It's clear you are misunderstanding the offence by saying check the records.


  • Options
    #9
    Kimbot
    Moderators, Computer Games Moderators, Social & Fun Moderators Posts: 18,433 Mod ✭✭✭✭Kimbot


    Melinka wrote: »
    Thanks for the advice, not great news though.
    It seems a bit unfair that you are presumed guilty and really there is no way to prove yourself innocent even if you phone records show that you were not texting or talking on the phone at the time. I have requested the phone usage record from that day but still not sure what to do.

    Thanks again.

    You could be using an app such as facebook etc so calls and text logs are useless. And in this case if you get a data usage log it will also be useless as your phone may have been transmitting data at the time for an app and the network provider does not distinguish on data usage between apps it will only show as you hitting the providers gateway.


  • Options
    #10
    slimjimmc
    Registered Users Posts: 7,787 ✭✭✭slimjimmc


    Where was the Garda. If you were crawling in stop-start traffic then he probably had a plenty of time to observe you. Any chance he was able to see into your car and observed you pick up or move the phone?
    Melinka wrote: »
    Thanks for the advice, not great news though.
    It seems a bit unfair that you are presumed guilty and really there is no way to prove yourself innocent even if you phone records show that you were not texting or talking on the phone at the time. I have requested the phone usage record from that day but still not sure what to do.

    Thanks again.
    The offence is for holding a phone or supporting it on your body, you don't actually need to be using the phone. Phone usage records are only proof you weren't in conversation.


  • Options
    #11
    suave.4u
    Registered Users Posts: 966 ✭✭✭suave.4u


    After some dealing with PRTB, I have learnt that it is not worth it.
    Admit that you were unlucky; pay the price and get on with your life.


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  • Options
    #12
    Melinka
    Registered Users Posts: 14 ✭Melinka


    The garda car was two cars behind me. To be honest I was mostly preoccupied looking back in my rear view mirror trying to figure out what the garda car was up to as it was intermittently putting on its flashing lights. I was trying to figure out if we were supposed to try to make way for the car- although on that road it really isn't possible where we were. The phone was on the passenger seat plugged into the charger. I definitely wasn't holding it and, to the best of my memory, I didn't even touch it.
    To be honest, I will probably just end up sending in the fine as I dislike confrontation at the best of times and can't imagine going to court over this when, most likely, they will believe the gard's word over mine anyway. The phone records can only prove if I am guilty of making a call- they can't disprove that I was holding my phone.


  • Options
    #13
    Little CuChulainn
    Closed Accounts Posts: 7,624 ✭✭✭Little CuChulainn


    Melinka wrote: »
    I think this is the truth sadly, thanks again for all of the answers.

    The funny thing is that the cops had actually parked beside my car at a restaurant in Tuam about 20 minutes earlier as we all had breakfast there. I guess I just got a bit of extra bacon that morning.

    Eventually the mask always slips.


  • Options
    #14
    Magico Gonzalez
    Registered Users Posts: 2,328 ✭✭✭Magico Gonzalez


    Little CuChulainn wrote: »
    Eventually the mask always slips.

    Wise up. OP has been fined for something she didn't do, has no real recourse to prove they didn't commit the offence and wasn't treated with much respect by the officer in question. The guy didn't even have the decency to tell her she was being fined, seemingly just warning her not to touch it.

    What do you expect? Act respectfully, gain respect.

    I wonder whose mask is actually slipping here.


  • Options
    #15
    slimjimmc
    Registered Users Posts: 7,787 ✭✭✭slimjimmc


    Magico Gonzalez wrote: »
    Wise up. OP has been fined for something she didn't do, has no real recourse to prove they didn't commit the offence and wasn't treated with much respect by the officer in question. The guy didn't even have the decency to tell her she was being fined, seemingly just warning her not to touch it.

    What do you expect? Act respectfully, gain respect.

    I wonder whose mask is actually slipping here.
    Where are you getting this from? The OP makes no comment on how he was treated and refusing to look at logs is not displaying a lack of respect.


  • Options
    #16
    Pro Hoc Vice
    Closed Accounts Posts: 6,087 ✭✭✭Pro Hoc Vice


    Topper Harley wrote: »
    Is it possible for the guard to be cross-examined in order to find out where he was and what his line of sight and distance were in order to convince the judge that it's possible the guard made a mistake?

    Guards, I assume, will have a high level of trust placed in them but that doesn't mean they are infallible and a judge would surely know this.

    Yes any witness can be cross examined. A judge in such situation is more likely to believe AGS but of course if the Judge has a doubt and believes the Garda the judge may believe the Garda might have been mistaken then the judge will aquit. The accused must prove nothing it's up to the State to prove the case beyond a doubt.


  • Options
    #17
    Pro Hoc Vice
    Closed Accounts Posts: 6,087 ✭✭✭Pro Hoc Vice


    Melinka wrote: »
    Thanks for the advice, not great news though.
    It seems a bit unfair that you are presumed guilty and really there is no way to prove yourself innocent even if you phone records show that you were not texting or talking on the phone at the time. I have requested the phone usage record from that day but still not sure what to do.

    Thanks again.

    You are in fact presumed innocent until it is proved beyond a doubt the accused is guilty.


  • Options
    #18
    Little CuChulainn
    Closed Accounts Posts: 7,624 ✭✭✭Little CuChulainn


    Magico Gonzalez wrote: »
    Wise up. OP has been fined for something she didn't do, has no real recourse to prove they didn't commit the offence and wasn't treated with much respect by the officer in question. The guy didn't even have the decency to tell her she was being fined, seemingly just warning her not to touch it.

    What do you expect? Act respectfully, gain respect.

    I wonder whose mask is actually slipping here.

    He's unhappy with getting a ticket from one Garda so he resorts to referring to all Gardaí as bacon. It's quite hard to conceal that kind of contempt on the roadside so I'm not surprised the Garda didn't pay any attention to what he said.


  • Options
    #19
    Melinka
    Registered Users Posts: 14 ✭Melinka


    OP here. I did actually feel that the officer was intimidating and not very respectful in the way he spoke to me although I left out the details in my post as I didn't feel it was necessary. despite not actually having committed the offense that he accused me of I showed him nothing but respect and courtesy whilst pulled over. I take your point, however, and I have deleted the joke that I made as it has caused offense which was not my intention, apologies.


  • Options
    #20
    Kimbot
    Moderators, Computer Games Moderators, Social & Fun Moderators Posts: 18,433 Mod ✭✭✭✭Kimbot


    Melinka wrote: »
    The garda car was two cars behind me. To be honest I was mostly preoccupied looking back in my rear view mirror trying to figure out what the garda car was up to as it was intermittently putting on its flashing lights. I was trying to figure out if we were supposed to try to make way for the car- although on that road it really isn't possible where we were. The phone was on the passenger seat plugged into the charger. I definitely wasn't holding it and, to the best of my memory, I didn't even touch it.
    To be honest, I will probably just end up sending in the fine as I dislike confrontation at the best of times and can't imagine going to court over this when, most likely, they will believe the gard's word over mine anyway. The phone records can only prove if I am guilty of making a call- they can't disprove that I was holding my phone.

    The bolded section here is relevant, everyones memory can be flakey at the best of times, even touching the phone on the passenger seat means your concentration is off the road so unless you are 100% certain then just take the points and fine and learn from it.


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