Accused of using mobile when scratching head

AnInnocentMawn

I was recently stopped by a garda who claimed I was using my mobile phone while driving.
I honestly was not using a phone at the time, maybe scratching my head or something which might have looked like using a phone.

However the guard was having none of it and insisted I was and proceeded to issue me the on the spot fine and I will also get the 2 penalty points.

What can I do about this? If I had been using the phone,I would accept this with no complaint. If this goes to court - it will be his word ( and his colleague) against mine. I know 2 penalty points wont affect my insurance, but it is the principle of this which really annoys me as I was not using the phone.


What would you do?

Karoma

AnInnocentMawn wrote:

What can I do about this? If I had been using the phone,I would accept this with no complaint. If this goes to court - it will be his word ( and his colleague) against mine. I know 2 penalty points wont affect my insurance, but it is the principle of this which really annoys me as I was not using the phone.


What would you do?

I'd go to court and demand they check my mobile phone usage (Calls received / made, with my provider).

Although, one must ask: Was your driving dangerous or seemingly impaired at the time of being pulled over even if it was not the result of mobile phone usage?

Fey!

Go through the log on your phone? Bring an itemised phonebill to court, along with documentation from your network provider showing incoming calls?

jayok

Get onto your mobile phone company and get a record of and calls to/from your phone from that hour. The time will be listed. Then use this to prove you weren't on the phone.

Wishbone Ash

AnInnocentMawn wrote:

If this goes to court - it will be his word ( and his colleague) against mine. I know 2 penalty points wont affect my insurance

Just bear in mind that, if convicted in court, it will be 4 points, not 2.

I'd take my chances with a court appearance and hope for a sympathetic judge.

CreepingDeath

AnInnocentMawn wrote:

..maybe scratching my head

Stop using head and shoulders, and submit a bag of dandruff as exhibit B.

Wishbone Ash

Karoma wrote:

demand they check my mobile phone usage (Calls received / made, with my provider)

Fey! wrote:

Go through the log on your phone? Bring an itemised phonebill to court

jayok wrote:

Get onto your mobile phone company and get a record of and calls to/from your phone from that hour

The relevant Statute Instrument, prohibiting the use of a mobile telephone while driving on a public road, does not specify that a call must be in progress. A motorist may be convicted for holding the phone while driving.

_Kaiser_

Yet another example why it's not acceptable that a Garda's "word" (especially in this country where it's every few months - or less - that they're embroiled in yet another scandal) is sufficient to prosecute and possibly convict someone.

I'd fight it OP but with the system we have - where people are actively discouraged from questioning the Gardai for fear of being landed with more points - you should be ready that you may well lose without any actual EVIDENCE having to be produced by the quota-filling cop in question.

Whatever happened to Innocent until PROVEN guilty.

AnInnocentMawn

The guard said I was talking on the phone. From his position I think the only use he could claim to have seen would have been an actual call.

The situation where I was stopped was that I was driving on a main road at 60mph and the guards were parked down a side road to my left and they must have been watching for mobile phone use.

I was just in a steady stream of traffic all doing the speed limit. I hadn't a clue what they'd stopped me for and was stunned when he told me I had been using my mobile. (I rarely use my mobile anyway and never in the car.)

My phone records will back me up but I wonder will they just ignore them in court, they probably go through these cases fast.

Stop using head and shoulders, and submit a bag of dandruff as exhibit B.

I use neutrogena , but I'll keep this advice in mind..

Has anyone actually been through an appeal for one of these points offences?

Guy:Incognito

Kaiser2000 wrote:

Yet another example why it's not acceptable that a Garda's "word" (especially in this country where it's every few months - or less - that they're embroiled in yet another scandal) is sufficient to prosecute and possibly convict someone. .

Unless your going to fit every gard with a head mounted camera capable fo recordign hi whole shift, I cant see much other way to go about things.

_Kaiser_

Stekelly wrote:

Unless your going to fit every gard with a head mounted camera capable fo recordign hi whole shift, I cant see much other way to go about things.

It'd work if we could trust that the Gardai were a professional and honest outfit, but I think regular reports of corruption, arrogance and incompetence make this impossible - at least until the new Ombudsman has a chance to weed out some of these individuals.

(offtopic and probably better in Humanities?: To be honest I wonder sometimes if the Irish in general are genetically incapable of running anything without the phenomenon of looking after their mates/family/themselves being the overriding factor and thus poisoning the process for everyone else.

Think about it.. everything from social welfare fraud, to planning permission corruption, the Gardai, right up to Bertie and our other elected officials (past and present) being investigated by Tribunals. And how do we react - "Ah sure wasn't he just unlucky to get caught?"

Sometimes I hate this country - and I'm Irish myself /offtopic)

seamus

Kaiser2000 wrote:

(offtopic and probably better in Humanities?: To be honest I wonder sometimes if the Irish in general are genetically incapable of running anything without the phenomenon of looking after their mates/family/themselves being the overriding factor and thus poisoning the process for everyone else.

It's not unique to Ireland. It happens in every country on the planet. The only thing is that we've spent the last 20 years moving from a rural backwater to a serious first-world country with a powerful economy - corruption has become less and less "acceptable", so it seems that a new scandal breaks every week, when in reality the bulk of the scandals occured 15/20 years ago, we're only finding out about them now.

As for the OP - as pointed out, you don't need to be on a call at the time. While records may show that you weren't on a call at the time, they won't show failed attempts - the garda could argue that you may have dialled, but cancelled the call when you saw the car.

Figures released (today) showed that two-thirds of all challenges to penalty points are succeeding in court. It may be worth it. You'd need to talk to a solicitor though I'd think, which may make it more expensive than it's worth.

jon1981

when its your word against a garda, does the garda win every time???

jimmycrackcorm

If the mobile calls list confirms that no calls were made and received then there is an excellent chance of a successful challenge. Without video evidence then there is reasonable doubt that the Garda's eyesight isn't supermans.

AnInnocentMawn

While records may show that you weren't on a call at the time, they won't show failed attempts - the garda could argue that you may have dialled, but cancelled the call when you saw the car.

That's true - but when stopped he actually said I was talking on the phone, held to my ear. He was quite certain - my left hand, my left ear, talking on the phone.

Moral of the story is an itchy head is now 2 penalty points - and it seems there's no reliable defense.

Be careful out there people.

Atomic Pineapple

its unfortunate that you have been a victim of the quota that the gardai are set to achieve, i wonder if the garda knew right well you werent on the phone and just picked a poor motorist out of the crowd? wouldnt suprise me.

its a tough one to call wether to go to court or not with the doubling of the points i'd ask a soliciter for advice and see

Karoma

Wishbone Ash wrote:

The relevant Statute Instrument, prohibiting the use of a mobile telephone while driving on a public road, does not specify that a call must be in progress. A motorist may be convicted for holding the phone while driving.

I always figured that was to cover texting - although, it could possibly be used to prosecute attempted calls, it'd be a tenuous case - especially if the defendant vehemently denies it and the Garda car didn't have a video camera. I don't think a judge would take his word over yours but cannot say for sure.

dingding

Are you left handed, I would use the phone wit my right,but never when driving

Henry Ford III

Produce itemised mobile bill. End of.

Pherekydes

Go to court and plead not guilty. Take it from there.


Fcuk it, I'm always scratching my head.

smemon

phone bill proves nothing..

you could have been texting, in the middle of playing an mp3, taking video, maybe about to make a call, connecting a charger into it etc..

none of that can be logged/proven.

BostonB

jon1981 wrote:

when its your word against a garda, does the garda win every time???

Not if you know the right person, or have photographic evidence.



This phone crack is unfair. Theres so many do it that it would be no hardship to catch them on the phone using a camera. Its unfair to do where theres no proof and they don't have to provide evidence. Its an offense to even hold a phone. How can you prove you weren't holding a phone? Unless you don't have one in the car, and you insist they find one on you or in the car.

seamus

Henry Ford III wrote:

Produce itemised mobile bill. End of.

That will only show calls you made. As pointed out, it doesn't show incoming calls, texts in progress, listening to ringtones, playing games....

For the record, the court won't always take a Garda's word as gospel. They will often be ignored if they lack other evidence - this is usually why you'll have two Gardai make the claim - two people's word against yours.

neacy69

seamus wrote:

That will only show calls you made. As pointed out, it doesn't show incoming calls, texts in progress, listening to ringtones, playing games....

For the record, the court won't always take a Garda's word as gospel. They will often be ignored if they lack other evidence - this is usually why you'll have two Gardai make the claim - two people's word against yours.

The OP has already said that the garda told him he had seen him with the phone in his left hand holding it to his left ear...so he saying that he was on the phone making/receiving a call at the time...

Creamy Goodness

this happened to me about two months ago,

exact same thing, scratching my head and adjusting my sunglasses, was pulled over and had the phone in the drinks holder down by the handbrake (where i always have it when driving).

i showed him the call log on the phone as he said i had the phone up to my ear while stopped at lights. he was having none of it took my license number and car reg and told me to expect the points. never got them but if i do i will appeal it.

i'm sure we got the same garda. he was a young 'un looking for his power trip to impress the ban garda that was driving him around

MAYPOP

My Dad got pulled over for allegedly talking on the phone, by a Garda who was behind in an unmarked car. Unfortunately for the Garda, my Dad doesn't even have a mobile phone, and he's also a smartarse (like father, like son:D ), so after much arguing, time-wasting and pisstaking, he challenged him to search the car for the phone. Red-faced Garda gave in, and also got a complaint for his trouble.

maidhc

seamus wrote:

That will only show calls you made. As pointed out, it doesn't show incoming calls, texts in progress, listening to ringtones, playing games....

For the record, the court won't always take a Garda's word as gospel. They will often be ignored if they lack other evidence - this is usually why you'll have two Gardai make the claim - two people's word against yours.

You don't hold your phone up to your ear for those things. The billing details don't show incoming calls, but it is possible to get a record of all communications. I have never done it, but the a request under the DPA should provide the information.

If there is no evidence a call was in progress I can't see the gardaí suffer the indignity of going before a judge.

wingnut

With these cases there is always a chance the garda will not show on the day anyway, making it even easier to win. Can't believe there are some guards that would do that. Any experience I've had with the gardai they have been very fair and professional.

Gregor Samsa

Henry Ford III wrote:

Produce itemised mobile bill. End of.

Unfortunately, even if that showed the incoming calls, texts, etc, it still wouldn't prove anything. Hypothecially, A driver could have two phones*, and show the bill for the one he wasn't using at the time in question.

OP, it sounds like it will be your word against the Garda's. But I'd fight my corner. Nothing worse that admitting to something you didn't do. It's a risk, given that the system is unfairly stacked against you, but good luck!

* I'm in no way suggesting this is the case with the OP. Just pointing out the fact that a phone bill or any phone records won't in itself prove anything to a judge.

Cappo

Reminds me of when the M1 opened, I was stopped by a garda car and the cop started reading me the riot act for driving with “walkman” earphones in, kept shouting at me “can you HEAR me – can you HEAR me”! I thought the cop was crazy. In fact the “earphones” he spotted from behind were the strings hanging from my sunglasses! The other cop in the car was pissing himself laughing as he had spotted the glasses string – lots of “oh sorry” and red faces!

Our man in Havana

maidhc wrote:

If there is no evidence a call was in progress I can't see the gardaí suffer the indignity of going before a judge.

Gardai simply don't care about little things like that. Have you ever heard of a garda being disciplined for bringing BS cases? I doubt they are. They can cause you to spend money on a lawyer to defend their baseless allegations but they will not be punished and you are still at the loss of your money.

Reminds me of a time I was involved in a minor accident, not my fault. I wanted the other guy prosecuted for dangerous parking. They refused and said if I didn't lay off they would do me for dangerous driving. There was no evidence of that and they freely admitted same. They commented that their case would fail in court but they would be delighted if I had to spend money to have the case dismissed.

maidhc

Bond-007 wrote:

Gardai simply don't care about little things like that. Have you ever heard of a garda being disciplined for bringing BS cases? I doubt they are. They can cause you to spend money on a lawyer to defend their baseless allegations but they will not be punished and you are still at the loss of your money.

They won't be punished, apart from being treated like naughty school children by a belligerent judge... and that I do see a fair bit.

Also if a guard gets a rep for bringing BS cases he will see his successful prosecutions fall, and that won't help his career much. Same thing happens lawyers who speak BS for their clients. BS is generally not liked.

IrishRover

jon1981 wrote:

when its your word against a garda, does the garda win every time???

No, I would say it is the opposite way around, because you would be under oath and as such what you are saying is assumed to be the truth.
However, I am not a lawyer, but I believe there may be a few who read this forum, so would be good to have their view on this. That is what I have seen anyway, and I have seen Gardai bringing BS cases to court being rightly ticked off by judges who hate having their time wasted.

I saw an article in the paper today that 2 out of 3 drivers who appealed penalty points for driving offences last year were successful.

faceman

IrishRover wrote:

I saw an article in the paper today that 2 out of 3 drivers who appealed penalty points for driving offences last year were successful.

http://www.breakingnews.ie/ireland/mhcwmhcweygb/

Mutz

AnInnocentMawn wrote:

I was recently stopped by a garda who claimed I was using my mobile phone while driving.
I honestly was not using a phone at the time, maybe scratching my head or something which might have looked like using a phone.

However the guard was having none of it and insisted I was and proceeded to issue me the on the spot fine and I will also get the 2 penalty points.

What can I do about this? If I had been using the phone,I would accept this with no complaint. If this goes to court - it will be his word ( and his colleague) against mine. I know 2 penalty points wont affect my insurance, but it is the principle of this which really annoys me as I was not using the phone.


What would you do?

Yep go to court and plead with the judge. No need for a solicitor as its a waste of money for something this small. Do as the lads say and bring your itemised phone bill. Ask the guard what time did he stop you at and for how long he was observing you for.

You have i think 28 days firstly and then 56 days to pay the fine before the summons goes out to you with a court date. don't be worried. Try and have a calm conversation with the guard, show him you're sound and he might strike it out for ya

el tel

AnInnocentMawn wrote:

The guard said I was talking on the phone. From his position I think the only use he could claim to have seen would have been an actual call.

The situation where I was stopped was that I was driving on a main road at 60mph and the guards were parked down a side road to my left and they must have been watching for mobile phone use.

I was just in a steady stream of traffic all doing the speed limit. I hadn't a clue what they'd stopped me for and was stunned when he told me I had been using my mobile. (I rarely use my mobile anyway and never in the car.)

My phone records will back me up but I wonder will they just ignore them in court, they probably go through these cases fast.



I use neutrogena , but I'll keep this advice in mind..

Has anyone actually been through an appeal for one of these points offences?

This whole 'their word against your's' really pisses me off, I'd say you should fight it on principle and would be confident you'd not lose.

For me the statements in bold are the deal-breakers here. In court it would be easy to undermine anyone who believes they can unfailingly identify someone in a car supposedly holding a mobile phone against their ear when passing amongst a line of vehicles at relatively high speed (60mph). There is so much scope for error. On so many levels you could question their judgement and I'd say you could get away with it. If , for example, you are right handed you'd be likely holding any phone in that had against that ear. How could they, positioned on your left, be sure that you had a phone against your right ear? Furthermore, if from the side road they would only get a fleeting glimpse of you then their position is even more untenable.

Darragh29

AnInnocentMawn wrote:

The guard said I was talking on the phone. From his position I think the only use he could claim to have seen would have been an actual call.

The situation where I was stopped was that I was driving on a main road at 60mph and the guards were parked down a side road to my left and they must have been watching for mobile phone use.

I was just in a steady stream of traffic all doing the speed limit. I hadn't a clue what they'd stopped me for and was stunned when he told me I had been using my mobile. (I rarely use my mobile anyway and never in the car.)

My phone records will back me up but I wonder will they just ignore them in court, they probably go through these cases fast.



I use neutrogena , but I'll keep this advice in mind..

Has anyone actually been through an appeal for one of these points offences?

For your information, you are allowed cross examine a Garda in court if you decide to defend yourself and don't use legal representation! If I was you, I'd get him to say that he saw you talking on your phone, this is the really important point, that he claims to have seen you in the middle of a conversation on the phone. Then when he has confirmed that this is his evidence, I'd produce the phone records to show that there were no incoming or outgoing calls through your phone at the time he alleged he asw you on the phone. No judge would find you guilty if you did that. The only way out of that for the Garda is to say that maybe you have 2 phones and the phone he saw you on is a different phone from the phone you have produced records for. You're dead right to oppose this, hope you make the cop look like a clown in court. While a judge will put some weight behind the word of a Garda, if the evidence starts to contradict what he is saying, the judge often will throw the case out. Good luck with it!

Darragh29

AnInnocentMawn wrote:

The situation where I was stopped was that I was driving on a main road at 60mph and the guards were parked down a side road to my left and they must have been watching for mobile phone use.

I'd also make a big deal out of this, I'd say that the manner in which the Garda was parked, he didn't have enough time if you were driving at 60MPH perpendicular to him, to possibly see you on a phone or otherwise. If he was serious about raising a charge like this, he should have observed you for a period of time on the phone, as in travelling alongside you or behind you, but not for 4 odd seconds as you whizzed last him.

Also, you should make a complaint to the Garda Ombudsman against him. He is obviously a bit trigger happy if he is pulling people for nothing, you are probably not the only person affected by him, I'd make a complaint about him for not doing his job, wasting your time, giving false evidence, etc.

Darragh29

Have to say, a very interesting point has been made here with regard to conviction on the word of a Garda, in particular with regard to the isssuance of penalty points. If you are charged with a penalty point offence and plead "no contest", you take the 2 penalty points and the fixed fine and you're on your way again. Now in the case of the OP, he says he didn't commit the crime.

If the OP chooses to appeal the matter, he goes to court with the risk of ending up with 4 penalty points and a bigger fine. My point here that even though he is placed in this position just because he exercised his right to appeal, there is no real defence he can put up because the burden of proof for conviction is so low. Once a Garda turns up and says he was on the phone, it's more or less end of story. I think this is really strange. For example, if you get penalty points for speeding, you get a letter in the post if you request it with a picture of your vehicle, your face in the driving seat, the registration number of your vehicle, the time and date of the alleged offence and the speed you were travelling at. Even with this level of proof, people have still challenged the evidence in court, challenged the validity of the speed detection equipment, etc. My point is that if you are caught speeding, forget about reasonable doubt, you can be 200% sure that you wrre actually speeding if you are caught for it.

It is remarkable that the same burden of proof is apparently required to convict someone on any penalty point offence, but in one case take for example speeding, the evidence couldn't be more robust against you, but for something like mobile phone use, the Garda doesn't need to produce any evidence at all! This can't be right says me...

Turner

Go to court, tell the judge the truth. If you come across as a honest person he will dismiss the case.

The Gard can only say what he thought he saw. Its up to the judge to decide if the gards evidence is enough.

maidhc

Chief--- wrote:

The Gard can only say what he thought he saw. Its up to the judge to decide if the gards evidence is enough.

Exactly.

I wouldn't go down the road of cross examining the garda without a legal representative. It tends to be cringeworthy and generally unhelpful to your case, because the judge will quickly form the opinion you are a smart alec rather than someone genuinely aggrieved.

Jo King

I think this case could be won by the O/P. I do not agree with the comments about legal representation. I have seen unrepresented defendants be convicted of offences they were in fact innocent of. Unrepresented defendants often annoy judges by wasting time. For a start the thing to do is turn up on the return date for the summons and ask for a disclosure order. It is only on getting disclosure that a decision can be made on the prospects for success. The case would be heard in the District court and on appeal in the Circuit Court.
There can be glaring inconsistencies between judges in the District Court, so saying "do X and you will win" is nonsense advice.. A reasonable level of skill would be needed in cross-examining the guard in order to establish facts which would help defeat the prosecution case. It is always better to try and win the case without the defence going into evidence. A well argued submission of "no case to answer" may well result in a dismissal at the end of the prosecution case.

McSpud

Go to court & fight it.

Ask for the court to taken on the road so you can run a simulation to test the Garda eye sight. It works on TV all the time

Seriously though it should be easy to show in court you had not made any calls or texts. You then have to ask the Judge/Garda why you would have the phone in your hand if you were not actively making a call/text.

din0saur

Sounds like a very flimsy case to me. Have you looked into what kind of phone records (if any) your mobile phone company can give you? What about going to your local Garda station and talking to them once you have records?

Looked over at the Indo site for recent stories found:

Fined €300: http://www.carlowpeople.ie/news/salesman-used-his-phone-while-driving-1050831.html

Fined €400: http://www.carlowpeople.ie/news/tractor-driver--fined-400-for--being-on-phone-642059.html

Drivers caught using mobile phones have the option of paying a fixed charge of €60 and incur two penalty points instead of being prosecuted in court. A motorist who challenges the fine in court and is convicted faces four penalty points and a fine of up to €2,000.
http://www.independent.ie/national-news/10000-drivers-caught-using-mobiles-despite-points-threat-50487.html

BostonB

din0saur wrote:

Sounds like a very flimsy case to me. Have you looked into what kind of phone records (if any) your mobile phone company can give you? . ...

Thats kinda been covered hasn't it?

Our man in Havana

din0saur wrote:

Sounds like a very flimsy case to me. Have you looked into what kind of phone records (if any) your mobile phone company can give you? What about going to your local Garda station and talking to them once you have records?

Looked over at the Indo site for recent stories found:

Fined €300: http://www.carlowpeople.ie/news/salesman-used-his-phone-while-driving-1050831.html

Fined €400: http://www.carlowpeople.ie/news/tractor-driver--fined-400-for--being-on-phone-642059.html

Drivers caught using mobile phones have the option of paying a fixed charge of €60 and incur two penalty points instead of being prosecuted in court. A motorist who challenges the fine in court and is convicted faces four penalty points and a fine of up to €2,000.
http://www.independent.ie/national-news/10000-drivers-caught-using-mobiles-despite-points-threat-50487.html

Judge Mary Martin strikes again!

Her fines are not a fair reflection on the rest of the country.

AnInnocentMawn

The case could be said to be flimsy on both sides. The fact I know what happened probably makes me incorrectly feel my case is stronger than it is.

Some bad news...

a) My insurance will rise by 10% for the next 3 years if I just accept the 2 points - also my girlfriend's will as I'm a named driver. 20% if I appeal and it goes to 4 points.

b) Worse - 02 say they don't keep records of incoming calls. The gardai can get full records - presumably by querying every Irish phone company, but I doubt that's a routine thing.

Thanks for all the advice though, particularly the posters with legal knowledge, disclosure orders etc. better do this with a solicitor if I'm to do it at all.

nialler

Innocent until PROVEN guitly.

I presume Irish law still adheres to these principles?

Here's a question, if it wasn't a garda would you fight it, and if the answer is yes, there's something fundamentally wrong when people do not trust them.

My sister had a similar situation with a traffic incident when a garda hopped out of the car and let fly verbally, she asked him to calm down and speak to her with some modicum of respect, he threw the book at her, she took photos of the said junction, drew sketches of the situation and walked into court and won her case, she's just an ordinary laid back 30 year old with a young child but felt that the way she was treated was unjust, and obviously the judge sided with her.

Personally, if I wasn't on the phone I would fight it regardless of the consequences purely from an honest and fair standpoint. If I was however on the phone and "cunningly" disguising it as scratching my ear then take the 2 points and pay the fine.

Are these your first 2 points? Why the loading on the insurance, I thought you weren't loaded until 4 points.

maidhc

AnInnocentMawn wrote:

b) Worse - 02 say they don't keep records of incoming calls. The gardai can get full records - presumably by querying every Irish phone company, but I doubt that's a routine thing.

They most likely do retain the records if they are complying with the Criminal Justice (Terrorist Offences) Act 2005.

The Customer Service agent is unlikely to have access to them though. Make a written request, you are entitled to the information.

AnInnocentMawn

Hibernian do this thing where they give you a discount if you've no points. 20% for none, 10% for 2, nothing for 4 and then they start loading.
If you don't provide your driver number to them then you don't get the discount even if you've no points.

In any case with 2 points my insurance would go up unless I've misread their documents.

--

Maidhc, I'll (or maybe my solicitor will) send in the written request for the complete records - the agent sounded convinced that they couldn't provide it but hopefully she was mistaken. When you're roaming abroad they've no trouble billing you for incoming calls.