Unfair ticket for "using" a mobile in a car. Advice please!

FreudianSlippers · 15-07-2011 04:16PM

tsoparno wrote: »

@ freudianslippers

no i haven't read the act because i couldn't be bothered cause it won't say anything about common sense.
if the garda looked across and saw his brother in the car beside him touching the GPS system i dont think he would've had the same reaction

Maybe you should go back and look. Again and for about the 3rd or 4th time, the Gardaí have no discretion where you are holding the phone.
Common sense or not. You're holding, you're guilty.

In this case, I would agree with you that if he was not holding the phone then the Garda should have done nothing - but he did and now we're telling the OP about what he can do to attempt to rectify the situation.
If you want to change the legislation, don't blame the Gardaí

tsoparno · 15-07-2011 04:25PM

FreudianSlippers wrote: »

Maybe you should go back and look. Again and for about the 3rd or 4th time, the Gardaí have no discretion where you are holding the phone.
Common sense or not. You're holding, you're guilty.

In this case, I would agree with you that if he was not holding the phone then the Garda should have done nothing - but he did and now we're telling the OP about what he can do to attempt to rectify the situation.
If you want to change the legislation, don't blame the Gardaí

don't agree with you they do have discretion it might not say it in the act but if he discovered it was his brother/cousin/friend driving that car he would have used his discretion would he not?

legaleagle10 · 15-07-2011 04:26PM

I really want to agree with the original poster but I think the garda is in the right, the operative words of your posting being "using my gps on my iPhone". If it was actually exclusively a GPS system i.e no phone- might be a whole different matter. Now the guard could of excercised discretion here as you werent exactly talking on your phone but the fact you touched the screen of a phone and were at the phone while in your vehicle imo would suggest an offence was committed. Harsh i know but that's the law!

Any advice?[/QUOTE]

FreudianSlippers · 15-07-2011 04:32PM

tsoparno wrote: »

don't agree with you they do have discretion it might not say it in the act but if he discovered it was his brother/cousin/friend driving that car he would have used his discretion would he not?

You're talking about apples and oranges here.

If you're talking about the average member of AGS then no.
If you're talking about the legislation then no.
If you're talking about a bad egg then maybe.

That's a matter for the ombudsman though, with proof of it happening.

dev100 · 15-07-2011 04:48PM

Then I heard honk from the Gard car beside me and Garda person shouting at me something. I did not hear it correctly. He poited at me to park on the side of the road. Then he was simply rude and unpleasnt, asking me for details and saying that I broke the law because I was HOLDING my phone WHILE driving.

Its no wonder people disrespect guards with an attitude like his, he should have used better judgement , Other people have argued you shouldnt have used phone whilst stationary or not. I would argue that you were stopped that would be my beef, If you had of been moving I would be the first to say serves you right, This just sickens me to me there would be no difference if you had pulled over to the side of the road and done whatever or done what you did whilst stopped... A person can be done for drink driving even they have keys in the ignition.

Theres many a time Ive seen guards laughing their heads off using mobiles whilst driving. In the line of duty my ass!!!

As a previous poster said write a letter to the super of that area. No harm in trying. Nothing ventured nothing gained. Go have your day in court if needed

tsoparno · 15-07-2011 04:59PM

FreudianSlippers wrote: »

You're talking about apples and oranges here.

If you're talking about the average member of AGS then no.
If you're talking about the legislation then no.
If you're talking about a bad egg then maybe.

That's a matter for the ombudsman though, with proof of it happening.

you think the average garda would do his brother for touching a phone in the car your not living in the real world,i worked with a guy who smashed his car into a ditch drunk and his brother(a garda) got him away with it.
and i'm sure theres 1000's of these case's it is gombeen ireland we live in

Finnbar01 · 15-07-2011 05:01PM

dev100 wrote: »

Theres many a time Ive seen guards laughing their heads off using mobiles whilst driving. In the line of duty my ass!!!

As a previous poster said write a letter to the super of that area. No harm in trying. Nothing ventured nothing gained. Go have your day in court if needed

Geez, if their heads fell off, what would they do? Lols.

HellFireClub · 15-07-2011 05:03PM

There is another angle you could go at with this but you'd have to go to the High Court as far as I know with this argument, as the court of first instance for a defence based on an alleged breach of your constitutional rights...

You could argue that as the "device" you were using was a GPS system and also an iPhone, that the piece of legislation at issue here trespassed upon your right to avail of, access, and have the use of a piece of your property, that you were using in good faith for the purposes of navigating with the assistance of the device across the city, pursuant to your property rights as guaranteed under article 40 of the constitution.

These property rights can of course be limited and modulated for the purpose of maintaining the common good, but you could argue that the legislation here goes well beyond that and deprives you, needlessly, of your right to use in good faith, without harm to anyone else or without any harm to the common good, something that you bought to assist you with driving safely in a city that you are not familiar with...

dev100 · 15-07-2011 05:11PM

Finnbar01 wrote: »

Geez, if their heads fell off what would they do.

Id prob have a good laugh myself;)

Magic Beans · 15-07-2011 05:17PM

HellFireClub wrote: »

There is another angle you could go at with this but you'd have to go to the High Court as far as I know with this argument, as the court of first instance for a defence based on an alleged breach of your constitutional rights...

You could argue that as the "device" you were using was a GPS system and also an iPhone, that the piece of legislation at issue here trespassed upon your right to avail of, access, and have the use of a piece of your property, that you were using in good faith for the purposes of navigating with the assistance of the device across the city, pursuant to your property rights as guaranteed under article 40 of the constitution.

These property rights can of course be limited and modulated for the purpose of maintaining the common good, but you could argue that the legislation here goes well beyond that and deprives you, needlessly, of your right to use in good faith, without harm to anyone else or without any harm to the common good, something that you bought to assist you with driving safely in a city that you are not familiar with...

You might get the charge dropped with that and then have a charge of driving without due care and consideration put in its place. You are not supposed to do anything in a car that can distract your attention from driving. It even says on my TomTom "do not operate this device while driving. In that context I believe operate means use the controls.

wandatowell · 15-07-2011 05:21PM

foinse wrote: »

Personally i would ban all distractions from the car. Including food and drinks as they can be just as distracting as a phone.

Would you ban a car radio too??

or perhaps the cigi lighter??

Finnbar01 · 15-07-2011 05:22PM

HellFireClub wrote: »

There is another angle you could go at with this but you'd have to go to the High Court as far as I know with this argument, as the court of first instance for a defence based on an alleged breach of your constitutional rights...

You could argue that as the "device" you were using was a GPS system and also an iPhone, that the piece of legislation at issue here trespassed upon your right to avail of, access, and have the use of a piece of your property, that you were using in good faith for the purposes of navigating with the assistance of the device across the city, pursuant to your property rights as guaranteed under article 40 of the constitution.

These property rights can of course be limited and modulated for the purpose of maintaining the common good, but you could argue that the legislation here goes well beyond that and deprives you, needlessly, of your right to use in good faith, without harm to anyone else or without any harm to the common good, something that you bought to assist you with driving safely in a city that you are not familiar with...

Wouldn't that cost an absolute fortune though?

HellFireClub · 15-07-2011 05:23PM

dev100 wrote: »

Finnbar01 wrote: »

Geez, if their heads fell off what would they do.

Id prob have a good laugh myself;)

If you ever want to get a flavour for how proficient or competent an Irish Garda is, spend a morning or an afternoon in the District Courts of Dublin, especially the one beside Bridewell, and see how many cases get struck out because the Garda (if he/she even turns up), has made an absolute and utter balls of something.

I was down there myself recently and a lad who was caught driving over twice the limit (alcohol), walked out the door laughing because the Garda asked him to blow into the testing machine a third and then a fourth time, (you get two chances to provide a breath specimen and if you can't, you get charged under a different section, with failing to give a sample), instead thick Garda in court tried (unlawfully), to get a third and a fourth sample and in doing so, handed the suspect a strike out of the charges.

HellFireClub · 15-07-2011 05:27PM

Finnbar01 wrote: »

Wouldn't that cost an absolute fortune though?

Yeah but wouldn't it be a laugh and a rap on the snot for the Garda! That's one thing I want to do before I die, have a law found to be repugnant to the constitution!

Finnbar01 · 15-07-2011 05:47PM

HellFireClub wrote: »

Yeah but wouldn't it be a laugh and a rap on the snot for the Garda! That's one thing I want to do before I die, have a law found to be repugnant to the constitution!

You had numerous opportunites to do that when the Queen and POTUS paid us a visit.

dev100 · 15-07-2011 05:55PM

HellFireClub wrote: »

If you ever want to get a flavour for how proficient or competent an Irish Garda is, spend a morning or an afternoon in the District Courts of Dublin, especially the one beside Bridewell, and see how many cases get struck out because the Garda (if he/she even turns up), has made an absolute and utter balls of something.

I was down there myself recently and a lad who was caught driving over twice the limit (alcohol), walked out the door laughing because the Garda asked him to blow into the testing machine a third and then a fourth time, (you get two chances to provide a breath specimen and if you can't, you get charged under a different section, with failing to give a sample), instead thick Garda in court tried (unlawfully), to get a third and a fourth sample and in doing so, handed the suspect a strike out of the charges.

see this the crap that annoys me its the feckers and scumbags who drink drive or who break the law as to cause hurt and harm to other people, Know their laws inside out and then you get the rest of us sheep who pay up and shut up.. And theres the OP who touches phone whilst STOPPED gets lambasted...The law is an ass as the phrase goes ..

No thanks Hellfireclub...I think hard of going near a cop shop to get a form signed never mind goin near a court house. Im better off not near them.
Thanks for offer though:D

dev100 · 15-07-2011 05:58PM

Magic Beans wrote: »

You might get the charge dropped with that and then have a charge of driving without due care and consideration put in its place. You are not supposed to do anything in a car that can distract your attention from driving. It even says on my TomTom "do not operate this device while driving. In that context I believe operate means use the controls.

Sure quote the law at a cashier next time you pass thru a toll road. Tell the cashier under the law your not allowed look for cash its to distracting

Hightower86 · 15-07-2011 05:59PM

i ve seen a similar argument to yours made in court, the defendant stated that he was stopped at traffic lights and was only using while he was stopped. Still got convicted and a fine of €125.

Fact is that you still held the phone while driving, doesnt matter if you are stuck in traffic or not, your still in charge of the car with the engine running. it doesnt matter for what function you were using the phone for, at the end of the day its a mobile phone. So by the letter of the law the Garda is right but in this situation i think he was a little harsh on the OP and a caution would of sufficed

MagicSean · 15-07-2011 06:17PM

dev100 wrote: »

see this the crap that annoys me its the feckers and scumbags who drink drive or who break the law as to cause hurt and harm to other people, Know their laws inside out and then you get the rest of us sheep who pay up and shut up.. And theres the OP who touches phone whilst STOPPED gets lambasted...The law is an ass as the phrase goes ..

No thanks Hellfireclub...I think hard of going near a cop shop to get a form signed never mind goin near a court house. Im better off not near them.
Thanks for offer though:D

God forbid the Garda should give him another chance to blow into the machine. You do know that if, after the second failed attempt, he was just charged he would be off the road for much longer than if he had provided a sample and been over the limit? So here you have a Garda getting criticism for giving a guy a chance while the Ops Garda who stuck to the letter of the law is wrong too.

It's a ridiculous example anyway. I was in the circuit court on Tuesday and a case where three attempts to blow into the machine where made was considered acceptable by the judge.

HellFireClub · 15-07-2011 06:20PM

Aren't class A drugs illegal in this state???

But yet you don't see the Gardai pursuing with anywhere near the same vigour as they pursue motorists, the junkies who have taken over the boardwalk area of the City Centre, Talbot Street, another junkie haven, surrendered to the junkies, people are afraid to walk down that way.

But Gardai being bone idle lazy, will shoot fish in a barrel and target the low risk motorist who will not stand up to them and just bend over.

MagicSean · 15-07-2011 06:24PM

HellFireClub wrote: »

Aren't class A drugs illegal in this state???

But yet you don't see the Gardai pursuing with anywhere near the same vigour as they pursue motorists, the junkies who have taken over the boardwalk area of the City Centre, Talbot Street, another junkie haven, surrendered to the junkies, people are afraid to walk down that way.

But Gardai being bone idle lazy, will shoot fish in a barrel and target the low risk motorist who will not stand up to them and just bend over.

Hang on, I think I saw a box you can stand on.

HellFireClub · 15-07-2011 06:25PM

Seanbeag1 wrote: »

God forbid the Garda should give him another chance to blow into the machine. You do know that if, after the second failed attempt, he was just charged he would be off the road for much longer than if he had provided a sample and been over the limit? So here you have a Garda getting criticism for giving a guy a chance while the Ops Garda who stuck to the letter of the law is wrong too.

It's a ridiculous example anyway. I was in the circuit court on Tuesday and a case where three attempts to blow into the machine where made was considered acceptable by the judge.

Rubbish, garda didn't do his job, end of story.

MagicSean · 15-07-2011 06:32PM

HellFireClub wrote: »

Rubbish, garda didn't do his job, end of story.

I take it you are not a solicitor?

HellFireClub · 15-07-2011 06:37PM

Seanbeag1 wrote: »

I take it you are not a solicitor?

Absolutely none of your business what my occupation is.

dev100 · 15-07-2011 06:39PM

Seanbeag1 wrote: »

God forbid the Garda should give him another chance to blow into the machine. You do know that if, after the second failed attempt, he was just charged he would be off the road for much longer than if he had provided a sample and been over the limit? So here you have a Garda getting criticism for giving a guy a chance while the Ops Garda who stuck to the letter of the law is wrong too.

It's a ridiculous example anyway. I was in the circuit court on Tuesday and a case where three attempts to blow into the machine where made was considered acceptable by the judge.

Hey read hellfires line

'I was down there myself recently and a lad who was caught driving over twice the limit (alcohol), walked out the door laughing" Hellfire stated that the lad was twice over the limit so It must have been proven he was over the limit in some shape or form thats what I find ridiculous this person got off on a technicality because of a guards stupidity . I think there is a major difference between drink driving dangerous driving compared to touching a phone whilst stopped at lights as I previously stated if op had been caught using phone whilst moving id have no sympathy for him . Yes THE Law is the Law

Finnbar01 · 15-07-2011 06:43PM

Seanbeag1 wrote: »

Hang on, I think I saw a box you can stand on.

Is it the same box you were just standing on?

dev100 · 15-07-2011 06:51PM

Seanbeag1 wrote: »

I take it you are not a solicitor?

Jasus the Guards wouldnt ask you that:D

jagblad · 15-07-2011 06:53PM

I don't think there's much if anything the OP can do. I'd recommend not using a smart phone as a car GPS in Ireland as any contact with it means you're breaking the law. In reality a garda could get you if he saw you tapping your pocket to see if the phone was there, or if you're uncomfortable and take it out of a pocket.

The law as it stands is a bit of an ass and I think uniquely harsh of the versions I've heard in other countries. (Even the UK warning ads talk about lifting the phone which is a more citizen friendly version).

The gardai pushed the government on it when they law was proposed to be using the phone - they knew they'd be ending up in court on every other case, actually having to prove via phone records etc..

It's a bit better though than the very first idea which I believe was to make it an offense to have a phone on your person while in the car.

In reality the law allows Gardai to catch people if they've formed the impression the person has touched their phone, and they don't even need to see the phone for this. They don't need any evidence to back up their theory. So don't scratch your ear or neck if you're anywhere close to a Garda car.

Being once charged for scratching my ear, I now put my phone in the boot on anything but short runs. Provides a tiny bit more security against such errors.

No point in explaining to a judge about GPS, while some are very sharp and knowledgeable most are likely to look at you like you're talking Japanese. Genuine or feigned ignorance of the commonplace is one of their favourite poses.

Keith186 · 15-07-2011 07:00PM

Hard luck OP.

I use my phone for sat navigation too but have the windscreen holder.

Risky taking it to court because he could just say you were holding the phone. Then again he mightn't turn up. If he does you'll have the opportunity to to tell him what a c××t he is!

I hate some of them thick Garda ****s, got a passport sign form signed before you'd swear I was a criminal! The thick ****es give them all a bad name as most gardai are usually decent people.

dev100 · 15-07-2011 07:05PM

pocket.

The law as it stands is a bit of an ass and I think uniquely harsh of the versions I've heard in other countries. (Even the UK warning ads talk about lifting the phone which is a more citizen friendly version).

T They don't need any evidence to back up their theory. So don't scratch your ear or neck if you're anywhere close to a Garda car.

Being once charged for scratching my ear, I now put my phone in the boot on anything but short runs. Provides a tiny bit more security against such errors.

Now You will have to explain this Scratching your ear?
As for touching your pocket without a guard seeing you handle a phone now that beggers belief. In a cops defense Id doubt this happens much unless you are driving like a twat Yes you are right the law is an ass.

Unfair ticket for "using" a mobile in a car. Advice please!

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