Mobile Phone Driving Offence Solicitors
If you have been accused of using a mobile telephone whilst driving you may want to plead guilty and take the points. Don’t! There are several reasons why the evidence from the police may not be good enough for a conviction. This page reviews the most common mistakes made by the police and the strongest defences available. To speak in confidence about your case, call our office for free advice.
On this page;
- The evidence required to achieve a conviction
- The most common defences
- Next steps
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Caught driving with a mobile phone
Let me be clear: it is not illegal to use a mobile phone whilst driving, even if you're holding the mobile phone. There are very few criminal offences that are misunderstood in the same way as mobile phone offences. Lack of training and recent proposals to change the legislation has created a culture of confusion and misapplication within the police force.
Driving with a mobile phone is an offence that carries 6 penalty points and a fine. Whether you plead guilty at the outset, or challenge the case to court, you can only ever receive 6 points and a fine. The points remain on your licence for three years (from the date of conviction). If a motorist accrues 12 or more penalty points within a 3 year period, they are automatically subject to a 6 month driving ban (unless the court finds exceptional hardship). For this reason, most people prefer to check the evidence against them. Many are surprised to find it doesn't exist.
There is no option to take a 'mobile phone' awareness course meaning the 6 points are mandatory. We can avoid the points by finding fault with the evidence. It doesn't matter if you 'admitted' the offence at the roadside.
If you've been charged with a mobile phone offence, there are two important questions to consider;
- What is the legislation being used to prosecute you?
- Have you seen the evidence against you?
What is the legislation being used to prosecute you?
It is likely that you have been charged under Regulation 110 of the Road Vehicles (Construction and Use) Regulations 1986 (the first page of the summons will state the law used). This is good news because since this law was introduced there has been considerable uncertainty as to what it actually means!
The actual offence occurs when a person is driving a motor vehicle on a road and is holding a mobile phone to;
- make or receive a telephone call, or;
- for some other 'interactive purpose'
The legal position is that a mobile telephone is deemed to be hand held if it is actually held at some point whilst using the device.
Please remember that the prosecution must prove the case against you. You may know that you were using the phone to make/receive a phone call, but can the police prove it? You are entitled to 'put the prosecution to proof'.
Have you seen the evidence against you?
In order to achieve a conviction, the prosecution must prove (beyond doubt) that;
- You were driving the vehicle
You must be driving the vehicle at the time of using the device. Even if the vehicle was stationary the police may argue that you were still driving it. However, you could argue that you had stopped the vehicle to use the device, even if you were in front of/behind other vehicles. Remember that the CPS must prove that you were driving - this is made much more difficult if the vehicle was stationary.
- On a road
The location of the vehicle being driven must have all the usual characteristics of a road. This offence may not be committed on private land or a car park. Public 'access' is only one factor when determining whether a location is public/private. Other factors, such as the purpose of the land and its ownership may also be relevant.
- Whilst using
There is no statutory definition of 'using'. In our experience, it would have to involve some kind of 'interactive communication' (i.e. using data/ sending texts/ scrolling through Facebook). Did the police take the make, model and serial number of the device? If not, how do they prove that data was being used at the time of the alleged offence?
What happens if you were using the device to record a video or to scroll through saved images on your phone? You may have been using it to play saved songs on a music platform (and therefore not using data). In these circumstances there is a strong argument to defend the case.
Mobile phones have multiple uses. What if you were using the device to record a voice note (and holding it up to your face)? This would not class as an interactive purpose meaning you are not guilty of the offence. Look carefully at the witness statement from the police officer (this should be included within the summons pack). My guess is that the officer has only stated that he saw you holding a phone. The usual phrase is that he saw you 'holding a phone to your right ear and you appeared to be talking into it'. Most mobile phone cases can be won just on this point alone – ‘holding’ is not the same as ‘using’. More detail on this point can be found below.
- A hand held telephone/device
It must be a device which is capable of making or receiving a telephone call or an 'interactive communication'. An MP3, iPod, Satellite Navigation or a remote control would not usually constitute a device for these purposes. Could the officer have mistaken an MP3 (or any other device) for a mobile phone?
Penalty for using a phone while driving
Using a mobile telephone whilst driving carries 6 penalty points and a fine. You should therefore ask yourself, ‘what do I have to lose by challenging the evidence?’. If you plead guilty and accept the fixed penalty you will receive 6 points on your licence (and a likely increase in insurance premiums). If you plead guilty after seeing all the evidence against you (this may take several weeks or months to obtain), you will still only receive 6 points. Even if convicted after a trial you still only receive 6 points.
Getting you 3 penalty points
As a specialist motoring defence solicitor, I spend a lot of time negotiating with the CPS to reduce charges. One option - if the evidence checks out - is that we explore a 'basis of plea'. It is an offence under the same section of the regulations to drive a motor vehicle without proper control. This may sound worse but it actually carries 3 penalty points. In my experience, the CPS are often willing to accept a plea to this offence because it avoids the need for a trial (and the costs that come with it). For a new driver, or a driver who is close to a ban, this strategy can work really well. There is a process in place to organise the basis of plea and we're happy to explain it to you.
Using a mobile phone whilst driving first became an offence in 2003. For many years the penalty for committing this offence was 3 points and small fine. In 2017, the penalty was increased to 6 points and a £200 fine.
Now you are more aware of the elements of the offence, let’s consider the evidence against you. As noted above, you should have been sent a copy of the witness statement from the police officer who apparently saw you ‘using’ the hand-held phone – making or receiving a call. Most statements that I see simply refer to ‘holding’ a phone (because this is what the officer believes he saw). The officer may say that he saw you ‘using’ the phone but this is much more difficult for him to prove.
So how can the police prove that you were ‘using’ the phone? Remember that ‘using’ is making or receiving a call (or text, email) whilst holding the phone. The only accurate way is to obtain your telephone records but my guess is that they will not do so (in all the mobile phone cases that I have defended I have never had one case where the police bothered to obtain phone records). Without records how will the prosecution service prove the existence of a phone call?
If you have not yet received a summons or police witness statement then please contact me for further advice. There are steps that can be taken to try to avoid the issue of a summons.
One way the police can prove that you were using the phone illegally is to access your data. The law allows the police to make contact with your service provider and apply for your phone records/call log. However, the only way this can happen is if the police know the correct details of the mobile phone used during the alleged offence. This means taking the device make, model and serial number at the roadside. If this did not happen, you may have an immediate case for dismissal.
Your defence to driving with a mobile phone
Your defence is likely to take one of two forms:
- You were not making or receiving a call
- You were making or receiving a call BUT you were using a hands-free kit (not holding the phone)
If you were not making or receiving a call then it is possible to make your defence even stronger. In this situation I would normally request telephone records for the phone that you were not using. These telephone records must come direct from your service provider in order for them to be admissible in evidence (used in court to assist your defence).
One of my aims is to get your case dropped by the CPS even before you have to attend court. One of the easiest ways of doing this is to serve a copy of the records on the CPS. The CPS will likely drop the case if there is no evidence of a call.
Please note that telephone companies can charge up to £150.00 for providing a copy of telephone records. It will also be necessary to obtain an order from the court (known as a witness summons) to force the telephone company to hand over the records. Despite the additional cost, it is obviously an advantage if we can obtain such records as this may result in the CPS dropping the case without it even going to court – and costs can usually be claimed back from central funds.
If you were using a Bluetooth headset or hands-free kit to make or receive a call, this is not regarded as using a mobile telephone whilst driving. This is because you were not holding a mobile telephone. We do, of course, need to show evidence of your hands-free kit such as the receipt, instructions, photographs or the kit itself.
M.A.J Law is a team of driving defence solicitors. All our time is spent achieving justice for motorists nationwide!
We offer free initial advice on any motoring issue. Even if you don't want to instruct a solicitor, we're happy to speak with you.
Mobile Phone FAQ's
If you have been charged with using a mobile phone no doubt you have lots of questions. You can call and speak to a solicitor free of charge on 01514228020.
Charged with using a mobile phone as a new driver
If you are convicted of using a phone whilst driving you will receive 6 penalty points on your licence. This means that, as a new driver, your licence will be revoked. You will have to retake your test (theory and practical) before driving again. One option to avoid this is a 'basis of plea' to a lesser offence in order to secure 3 penalty points. We'd be happy to discuss this with you.
Can I use my phone as a sat nav whilst driving?
Yes. It is perfectly legal to use your phone as a sat nav whilst driving. However, you must not touch the phone during this time and it cannot obstruct your viewpoint of the road. If you touch or take hold of the phone you could be committing an offence. Even tapping the screen to decline a call could put you in trouble.
Can I use my phone whilst stationary in a car?
Yes, but only if the vehicle is parked. If you're in stationary traffic, or at a red light, you are still considered 'driving'. It is therefore an offence to use the phone. You might argue, however, that you're parked up (even if there are vehicles around you).
What fine do I receive for driving with a mobile phone?
If you accept a condition offer (fixed penalty notice) the fine is around £200 (it is not means tested). If you challenge the case and are later found guilty the fine is based on your income. It is usually a Band B fine which amount to 100% of your weekly income.
Is it legal to drive with hands free
Yes. You can legally drive using hands free. Some road safety charities are calling for hands-free devices to be outlawed because they can still create distractions. Using the speaker function on your phone is also legal, but only if someone else actives the speaker (and ends the call).
Free Legal Advice from M.A.J Law
M.A.J Law are specialist driving defence solicitors. We believe that every motorist has the right to independent legal advice. For this reason, we offer every motorist free specialist advice no matter what your circumstances. M.A.J Law work on a fixed fee basis, so you don't have to worry about ongoing legal costs as your case progresses. If you would like to know more about your options, please get in touch.