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I got a distracted-driving ticket for vaping. Could I get out of it?

I am a 17-year-old high school student and I was recently given a distracted driving ticket. I was driving down the road and had my vape in hand (it has a screen on it and might look like a phone) and got pulled to the side of the road by three police officers. The guy came up to my window with the $287 ticket and told me I was on my phone, but I insisted it was my vape. He wrote that I am an adult. I was just wondering if I could somehow get out of this because he didn't mark that I'm a youth. - Matt, Sherwood Park

A distracted officer misspelling your name or getting your address wrong won't get you out of a distracted driving ticket.

But saying you're an adult when you're not? That might.

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"The only way to get a dismissal is if the gender is wrong or if its youth or adult is wrong," said Dean Marsh, an investigator with Provincial Ticket Resolutions in Airdrie, Alta. "But that's only sometimes and not always – nothing is for sure."

While the penalties are generally the same – $287 and three demerit points – if you're under 18, cases are handled by youth court.

"Depending on the ticket, different procedures and sentencing options can apply to youth," Alberta Transportation said in an e-mail statement.

While it's usually a separate court in bigger places like Calgary, "here they'll just say, 'Now we're opening youth court,'" said Mr. Marsh, a former police officer. "Youth cases have to be handled differently – every time I charged a youth, I did what you're supposed to do and called the parents."

Even if the ticket isn't dismissed over the error, if you think you have a defence, you can plead not guilty and challenge a distracted driving ticket.

"If a recipient pleads not guilty, a trial date before a judge or justice of the peace will be set; at trial, the recipient has the right to be represented by a lawyer or agent," the province said. "The same standard of proof that applies in criminal cases applies in traffic cases; the Crown must prove the offence beyond a reasonable doubt."

The vape escape?

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Could "but I was only vaping" be a successful defence? We checked with traffic lawyers around Edmonton and none would go on the record.

But Mr. Marsh said it could be, depending on what the officer wrote down on the ticket. If it said cellphone, you might have a chance.

"It's called the inarguable truth," Mr. Marsh said. "I've had officers say they charged someone because he was looking down, and I'd say 'Can you prove he was looking down at a cellphone? Because I have my daughter's gym bag on the floor of my vehicle, and I look down to remind myself to take it out of there."

That said, Alberta's unique in Canada; you don't need to be on an electronic device to get a distracted driving ticket.

The law covers things like shaving, reading and writing.

This year, a driver wearing a ferret on his neck was charged with distracted driving in Edmonton, police said.

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So even though it wasn't a phone, if you were distracted while vaping – by fiddling around with it or adding oil – the charge might hold, one lawyer told Globe Drive.

"The Traffic Safety Act does not specifically prohibit vaping while driving," the ministry said. "However, in general, an officer has discretion to determine whether or not a driver is distracted behind the wheel. The intent of the legislation is to stop distracted driving and improve the safety of Alberta's roads."

Last year, there were nearly 27,300 distracted-driving convictions in Alberta. We asked for the number of tickets that were successfully challenged, but it was not immediately available.

If you really were distracted, you should get a ticket, Mr. Marsh said.

"They're saying from studies that it's worse than driving impaired – you have to give driving your full attention," he said. "I watched a lady eating a steak, and I pulled her over – it's not just touching electronic devices, it's anything that distracts you from what you should be doing."

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