Disputing a driving while on the phone fine

gutteruu

Pulled up outside a garda station to take a call. There was a gaurd pulling out. I seen him, was aware of the station and only answered the call as I was pulling up. He said technically the vehicle was moving and I was on the phone so he gave me a fine (and 3 points). I received the fine, but the townland is wrong. Out of spite I'd like to dispute it, but wondering would I have any luck.

Thanks

GerardKeating

gutteruu wrote: »

technically the vehicle was moving and I was on the phone

So technically you did commit the offense ?

gutteruu wrote: »

I received the fine, but the townland is wrong. Out of spite I'd like to dispute it, but wondering would I have any luck.

How much do you want to spend/risk on this "spite" ?

gutteruu

GerardKeating wrote: »

So technically you did commit the offense ?


How much do you want to spend/risk on this "spite" ?

"Technically" the vehicle was rolling to a stop, yes.

Its the points that are my concern. They get costly on insurance and 3 years is a long time.

ohnonotgmail

gutteruu wrote: »

"Technically" the vehicle was rolling to a stop, yes.

Its the points that are my concern. They get costly on insurance and 3 years is a long time.

disputing it could cost you even more points. on what basis would you dispute it?

gutteruu

ohnonotgmail wrote: »

disputing it could cost you even more points. on what basis would you dispute it?

Wrong townland on the fine issued. Fair enough if I can't, was just curious.

ohnonotgmail

gutteruu wrote: »

Wrong townland on the fine issued.

the judge will tell the guard to correct the townland in the court. it is not a material defect.

GerardKeating

gutteruu wrote: »

"Technically" the vehicle was rolling to a stop, yes.

Its the points that are my concern. They get costly on insurance and 3 years is a long time.

If you lose, you get five points.

If you state the facts truthfully, you will lose since "rolling to a stop" is still "driving"...

CIARAN_BOYLE

gutteruu wrote: »

Wrong townland on the fine issued. Fair enough if I can't, was just curious.

Well you can go to the court and a judge will order the garda to correct the issue.

It won't mean the issue is struck out.

gutteruu

Ok. Fair enough. Thanks for your help.

Irishphotodesk

firstly you need to have your story straight BEFORE going into court, the engine was off and you were rolling into a stop, so "technically" you were not driving or in control of your vehicle.

secondly - AFTER you are convicted and fined, lodge an appeal and say the same thing in the appeal court.

Appeal court judges will listen to both sides and put equal weight into them, district court judges tend to put extra weight to the testimony of a garda.

you could be successful on the first occasion, but only if the judge listens to your side of the story and believes it (of course you could always hire a solicitor who can argue the same points outlined above, and once the judge sees you are already paying into the legal system (solicitor) - then usually they pay attention to the legal representing you.

BuzzMcdonnell

Irishphotodesk wrote: »

firstly you need to have your story straight BEFORE going into court, the engine was off and you were rolling into a stop, so "technically" you were not driving or in control of your vehicle.

Makes no sense. By that logic if I turn off my car and roll past a speed camera or Garda at 160 km/h I wouldn’t be “driving or in control of” my vehicle? Nonsense.

ohnonotgmail

Irishphotodesk wrote: »

firstly you need to have your story straight BEFORE going into court, the engine was off and you were rolling into a stop, so "technically" you were not driving or in control of your vehicle.
.

that wont work. "Driving" means "managing and controlling". if the engine is turned off and you are rolling to a stop you are still "managing and controlling".

Cite

Road Traffic Act, 1961
http://www.irishstatutebook.ie/eli/1961/act/24/section/3/enacted/en/html

“driving” includes managing and controlling and, in relation to a bicycle or tricycle, riding, and “driver” and other cognate words shall be construed accordingly;

Irishphotodesk

BuzzMcdonnell wrote: »

Makes no sense. By that logic if I turn off my car and roll past a speed camera or Garda at 160 km/h I wouldn’t be “driving or in control of” my vehicle? Nonsense.

only problem is you can't use that while driving at speed - if the OP was rolling to a stop as they said then it would be important for their case to mention that the engine was already turned off.

its wrong to suggest that your scenario could work because turning the engine off while driving would not do anything other than slow/stop the vehicle.

Irishphotodesk

ohnonotgmail wrote: »

that wont work. "Driving" means "managing and controlling". if the engine is turned off and you are rolling to a stop you are still "managing and controlling".

so using this logic anyone who sits into their vehicle a depresses the handbrake could be liable for a fine - as they are "managing and controlling" the vehicle.

if the OP can get the garda to agree that the engine was off - or that they cannot recall if the engine was running and are willing to accept the OP's assertions that the engine may have been off, the judge should find in favour of the OP.

As I have said though - its highly likely that without legal representation a district court judge will put less weight into the OP's testimony than the word of a garda and its more likely to be successful AFTER the OP has been convicted and appeals the issue in the appeals court (another day in court).

ohnonotgmail

Irishphotodesk wrote: »

so using this logic anyone who sits into their vehicle a depresses the handbrake could be liable for a fine - as they are "managing and controlling" the vehicle.

if the OP can get the garda to agree that the engine was off - or that they cannot recall if the engine was running and are willing to accept the OP's assertions that the engine may have been off, the judge should find in favour of the OP.

As I have said though - its highly likely that without legal representation a district court judge will put less weight into the OP's testimony than the word of a garda and its more likely to be successful AFTER the OP has been convicted and appeals the issue in the appeals court (another day in court).

It is not my logic. It is what the appropriate legislation says. If you turn off the engine in the car and it continues to roll you are still managing and controlling it until such time as the car comes to a stop. And of course there is no suggestion from the OP that the engine was turned off so you are telling the OP to commit perjury. Not great advice in fairness.

conndeal

A family member was stopped by a garda while driving on a motorway for talking on his phone. He was not talking on the phone. He did not have it in his hand or near him. The guard did not listen to him and told him he could appeal. The phone company would not give him details of incoming calls to his phone number to allow him prove he was not on the phone. He would have needed both incoming and outgoing calls. He paid the fine and took the points because he felt the judge would believe the guard.

ohnonotgmail

conndeal wrote: »

A family member was stopped by a garda while driving on a motorway for talking on his phone. He was not talking on the phone. He did not have it in his hand or near him. The guard did not listen to him and told him he could appeal. The phone company would not give him details of incoming calls to his phone number to allow him prove he was not on the phone. He would have needed both incoming and outgoing calls. He paid the fine and took the points because he felt the judge would believe the guard.

It is irrelevant that he wasn't making a call at the time. the offence is "holding a phone" not "using a phone". going to court would only have resulted in a bigger fine and more points.

GT89

Your the driver your in control. You should have ensured the car was fully stopped and engine switched off before taking the call common sense stuff really. If the phone is that much of a distraction to you when driving switch it off and put it in the glove box. I think another of people cannot grasp the responsibility of being behind the wheel.

Infernal Racket

Pay the fine dude, you're on a loser in your case I'm afraid.

Irishphotodesk

conndeal wrote: »

A family member was stopped by a garda while driving on a motorway for talking on his phone. He was not talking on the phone. He did not have it in his hand or near him. The guard did not listen to him and told him he could appeal. The phone company would not give him details of incoming calls to his phone number to allow him prove he was not on the phone. He would have needed both incoming and outgoing calls. He paid the fine and took the points because he felt the judge would believe the guard.

ohnonotgmail wrote: »

It is irrelevant that he wasn't making a call at the time. the offence is "holding a phone" not "using a phone". going to court would only have resulted in a bigger fine and more points.

Did you actually NOT read the post or just chose to ignore the part where the person says the driver didn't have the phone in their hand....or maybe you simply didn't see that part.

ohnonotgmail

Irishphotodesk wrote: »

Did you actually NOT read the post or just chose to ignore the part where the person says the driver didn't have the phone in their hand....or maybe you simply didn't see that part.

I didnt. I stand corrected. No need for the anger just because I corrected you earlier.

This reminds me of the time my dad was stopped and the the guard said.
"I seen you putting on your seatbelt pulling away from from the petrol pump"
He give him a fine and 3 points for putting on his seatbelt.
Some guards are absolute dickheads.

Batattackrat

A friend of mine was breathalysed last year at 8AM and was over the limit from the night before and was getting six months of the road.
He got the summons and the address was wrong on it. He got a solicitor and won in court with the address been wrong.

If you really want to fight it get a solicitor who will advise you
Don't take people's opinions on boards.

For the sake of three penalty points and hiring a solicitor and potentially losing I probably wouldn't bother but contact a solicitor and see what he thinks if you wish to fight it.

Padre_Pio

Irishphotodesk wrote: »

so using this logic anyone who sits into their vehicle a depresses the handbrake could be liable for a fine - as they are "managing and controlling" the vehicle.

Yes. "Managing" is a vague word.

It's how Gardai get people sleeping in their cars after the pub for drink driving.

Lenar3556

Batattackrat wrote: »

A friend of mine was breathalysed last year at 8AM and was over the limit from the night before and was getting six months of the road.
He got the summons and the address was wrong on it. He got a solicitor and won in court with the address been wrong.

If you really want to fight it get a solicitor who will advise you
Don't take people's opinions on boards.

For the sake of three penalty points and hiring a solicitor and potentially losing I probably wouldn't bother but contact a solicitor and see what he thinks if you wish to fight it.

+1 on getting legal advice.

It may have been a mandatory alcohol testing checkpoint. These need to be authorised by a senior Garda and be established at a specific location. If your friend was breathalysed at a location other than that which was on the authorisation, or sufficient doubt arose in the Garda’s evidence with regard to the location, this could well cause the states case to fail as it would be argued that the MAT checkpoint was not authorised.

If your friend was pulled over on suspicion of drunk driving and subsequently arrested, the location/address/townland would be much less materially important.

Batattackrat

Lenar3556 wrote: »

+1 on getting legal advice.

It may have been a mandatory alcohol testing checkpoint. These need to be authorised by a senior Garda and be established at a specific location. If your friend was breathalysed at a location other than that which was on the authorisation, or sufficient doubt arose in the Garda’s evidence with regard to the location, this could well cause the states case to fail as it would be argued that the MAT checkpoint was not authorised.

If your friend was pulled over on suspicion of drunk driving and subsequently arrested, the location/address/townland would be much less materially important.

Yea it was mandatory alcohol testing checkpoint. The address on the summons was off about 1KM off of where he was actually breathalyzed.

Claw Hammer

Order 38 of the District Court Rules:-

1. (1) Subject to the provisions of paragraph (3) hereof, in cases of summary jurisdiction no variance between the complaint and the evidence adduced in support thereof, as to the time at which the offence or cause of complaint is stated to have been committed or to have arisen, shall be deemed material, provided that such information or complaint was in fact made within the time limited by law for making the same; nor shall any variance between the complaint and the evidence adduced in support thereof, as to the place in which the offence or cause of complaint is stated to have been committed or to have arisen, be deemed material, provided that the said offence or cause of complaint was committed or arose within the jurisdiction of the Judge by whom the case is being heard, or that, the accused resides or in the case of an offence was arrested within such jurisdiction. In any such case the Court may amend the summons, warrant or other document by which the proceedings were originated and proceed to hear and determine the matter.



Defects

(2) Subject to the provisions of paragraph (3) hereof, no objection shall be taken or allowed on the ground of a defect in substance or in form or an omission in the summons, warrant or other document by which the proceedings were originated, or of any variance between any such document and the evidence adduced on the part of the prosecutor at the hearing of the case in summary proceedings or at the examination of the witnesses during the preliminary examination of an indictable offence, but the Court may amend any such summons, warrant or other document, or proceed in the matter as though no such defect, omission or variance had existed.



Court’s discretion

(3) Provided, however, that if in the opinion of the Court the variance, defect or omission is one which has misled or prejudiced the accused or which might affect the merits of the case, it may refuse to make any such amendment and may dismiss the complaint either without prejudice to its being again made, or on the merits, as the Court thinks fit; or if it makes such amendment, it may upon such terms as it thinks fit adjourn the proceedings to any future day at the same time or at any other place.

A wrong townland is not going to get the o/p out of it.

the_pen_turner

if you pull over and stop to take a call but leave the engine on could you be fined etc

Infernal Racket

the_pen_turner wrote: »

if you pull over and stop to take a call but leave the engine on could you be fined etc

No

2012paddy2012

gutteruu wrote: »

Wrong townland on the fine issued. Fair enough if I can't, was just curious.

Are you 100 per cent on the townland????
Find it hard to believe any cop would not the townland his office is on !!!!!

If your 100 per cent right - check proper ordinance survey map - you have great chance of dismissal provided you can prove it 100 per cent provided the cop doesn’t get to amend the town land if he is aware of the error ( which I doubt) in the judges hands

ohnonotgmail

2012paddy2012 wrote: »

Are you 100 per cent on the townland????
Find it hard to believe any cop would not the townland his office is on !!!!!

If your 100 per cent right - check proper ordinance survey map - you have great chance of dismissal provided you can prove it 100 per cent provided the cop doesn’t get to amend the town land if he is aware of the error ( which I doubt) in the judges hands

take a look at post #27. A defect of this nature in the summons will not be fatal to a prosecution.

How is this still being debated? Other than the usual terrible advise from the usual suspects, the solid advise has been given by the usual solid users.

GM228

Infernal Racket wrote: »

the_pen_turner wrote: »

if you pull over and stop to take a call but leave the engine on could you be fined etc

No

No is the incorrect answer.

Rather, it's possible (but probably unlikely).

Infernal Racket

GM228 wrote: »

No is the incorrect answer.

Rather, it's possible (but probably unlikely).

No it's not possible. The offence is driving while holding a mobile phone. If the car is stopped, regardless of the engine running then it is perfectly legal to take or make a call

GM228

Infernal Racket wrote: »

No it's not possible. The offence is driving while holding a mobile phone. If the car is stopped, regardless of the engine running then it is perfectly legal to take or make a call

Driving does not just mean moving along the road like the common understanding, it is based on management and control of a vehicle, you are still managing and controlling a vehicle even when stopped, managing and controlling a vehicle equates to driving a vehicle, just because you pull over does not mean you are no longer managing or controlling the vehicle.

athlone573

GM228 wrote: »

Driving does not just mean moving along the road like the common understanding, it is based on management and control of a vehicle, you are still managing and controlling a vehicle even when stopped, managing and controlling a vehicle equates to driving a vehicle, just because you pull over does not mean you are no longer managing or controlling the vehicle.

The offence is something like "while not parked legally" so just being pulled in to the side of the road isn't necessarily sufficient. No doubt somebody will quote chapter and verse.

GM228

athlone573 wrote: »

The offence is something like "while not parked legally" so just being pulled in to the side of the road isn't necessarily sufficient. No doubt somebody will quote chapter and verse.

It is not, it is simply one of "a person shall not while driving a mechanically propelled vehicle in a public place hold a mobile phone", there are no "subject to" provisions, the only exceptions are when calling the emergency services or acting in response to a genuine emergency situation.

ohnonotgmail

athlone573 wrote: »

The offence is something like "while not parked legally" so just being pulled in to the side of the road isn't necessarily sufficient. No doubt somebody will quote chapter and verse.

the offence mentions nothing about being parked

http://www.irishstatutebook.ie/eli/2006/act/23/section/3/enacted/en/html

A person shall not while driving a mechanically propelled vehicle in a public place hold a mobile phone.

athlone573

ohnonotgmail wrote: »

the offence mentions nothing about being parked

http://www.irishstatutebook.ie/eli/2006/act/23/section/3/enacted/en/html

You're right, it must have been a UK law I was thinking of

So has there been any test cases as to what constitutes "driving"? For the sake of a few penalty points its not worth disputing, I guess, but as a theoretical question?

Infernal Racket

GM228 wrote: »

Driving does not just mean moving along the road like the common understanding, it is based on management and control of a vehicle, you are still managing and controlling a vehicle even when stopped, managing and controlling a vehicle equates to driving a vehicle, just because you pull over does not mean you are no longer managing or controlling the vehicle.

This is exactly the kind of incorrect information that people need to ignore. You're just adding in your own bits to very straight forward legislation

GM228

Infernal Racket wrote: »

This is exactly the kind of incorrect information that people need to ignore. You're just adding in your own bits to very straight forward legislation

What bits of my own did I add in?

mfceiling

conndeal wrote: »

A family member was stopped by a garda while driving on a motorway for talking on his phone. He was not talking on the phone. He did not have it in his hand or near him. The guard did not listen to him and told him he could appeal. The phone company would not give him details of incoming calls to his phone number to allow him prove he was not on the phone. He would have needed both incoming and outgoing calls. He paid the fine and took the points because he felt the judge would believe the guard.

I was stopped on the n4 last year for being on the phone. (I wasn't)

Do you know why i stopped you?

No.

You were talking on the phone.

No I wasn't...my phone is on the passenger side, I have a hands free kit fitted and (I opened the phone and handed it to him) the last call was at half 2 this afternoon...it was after 7.

Oh sorry....it must have been another white van.


My van is silver!!

Infernal Racket

GM228 wrote: »

What bits of my own did I add in?

The whole managing and controlling part. Simply speaking, it is not an offence to hold a mobile phone while parked. That's it in a nutshell. No add ons, no makey uppy stuff, it simply is not an offence

ohnonotgmail

Infernal Racket wrote: »

This is exactly the kind of incorrect information that people need to ignore. You're just adding in your own bits to very straight forward legislation

athlone573 wrote: »

You're right, it must have been a UK law I was thinking of

So has there been any test cases as to what constitutes "driving"? For the sake of a few penalty points its not worth disputing, I guess, but as a theoretical question?

post #12 cites the relevant legislation. "managing and controlling" are the very heart of what constitutes "driving".

Peregrinus

GM228 wrote: »

What bits of my own did I add in?

Infernal Racket wrote: »

The whole managing and controlling part. Simply speaking, it is not an offence to hold a mobile phone while parked. That's it in a nutshell. No add ons, no makey uppy stuff, it simply is not an offence

"Managing and controlling" is not something invented by GM228. The Road Traffic legislation expressly defines driving a vehicle to include "managing and controlling" it. If the engine is running and you're sitting in the driver's seat, in control of the vehicle to the exent that you stopped it, or you turned on the engine, and to the extent that you decide whether and when to put it in gear and move off, you are very much managing and controlling the vehicle and, therefore, driving it.