Ontario Provincial Police recently conducted a concerted campaign to charge drivers they see holding mobile devices. With distracted driving becoming as significant a cause of accidents as driving while intoxicated, authorities across the country are making enforcement a higher priority.
However, experts say many people continue to ignore the dangers of texting and checking messages while behind the wheel. In sync, an increasing number of drivers are expected to contest their tickets as the fines go up (Ontario's increases to $280 from $155, on March 18) and provinces, consider adding demerit points – leading to the question of whether the police and the courts can enforce these laws.
"If you're caught with a device in your hand, don't admit anything to the officer no matter how nice he or she is," says Tom Walton, paralegal with Toronto ticket-defence company X-Copper.
"If you're asked, 'Was that a phone in your hand?' Say, 'I'm not going to answer that,'" Walton advises. "If the officer says, 'Well, you have to answer,' you can still refuse, because judges will not allow statements that are compelled by police as evidence."
Police look for gaps in the traffic flow, says Staff Sergeant Paul Stacey of Calgary Police Services, which conducted a distracted driving enforcement blitz in February. "When there's unusual space between one car and another, it's often because the driver is not paying attention and has slowed down to check a message."
Police take detailed notes when they issue citations because, if the driver fights a ticket, "courts are requiring details; just saying I observed the person texting is not enough." Stacey says. "They'll note that they saw the light of a phone display in the driver's hand or that the driver was moving a thumb across the device appearing to text."
A driver in Calgary last summer chose a particularly inopportune time to sneak a peek at his smartphone. Not realizing traffic had stopped, he rear-ended a car being driven by Rick Hanson, Calgary's police chief. There wasn't much of a protest when he was charged with distracted driving.
Disputing a ticket in court could take three months to a year to get a trial date. Expense "could be a couple of hundred dollars going through a paralegal, up to a couple of thousand dollars hiring a major law firm," Walton says, and you must have a clear, consistent story because you're required to testify on your behalf at a hearing.
"The popular misconception is that it's your word against the officer," Walton says. Higher courts have ruled when determining credibility that if the justice accepts the evidence of the accused, they must acquit. "Even if they don't accept the evidence of the accused, but are left in reasonable doubt by the evidence they do receive from the officer, then they must acquit," he says.
A cellphone record isn't sufficient to prove that you didn't still have the device in your hand at the time. However, police do check cellphone usage records when they investigate whether an accident may have been caused by texting, OPP highway safety spokesman Sergeant Dave Woodford says. "In a fatality or serious injury accident where we call a reconstruction unit out to investigate, they will get warrants to seize your cellphone records to show you were on the phone at the time of the collision."
Less than 3 per cent of the 15,000 drivers issued tickets since Alberta's distracted driving law took effect in 2011 have pleaded not guilty, Stacey says. "With only a monetary fine of $172 and no demerit points, most people find the appeal process not worth the time and expense."
That may change as Alberta, Manitoba, Ontario and Nova Scotia, which don't assess demerit points for distracted driving, consider joining all the other provinces, which apply three or four points to tickets. A private members bill from Bas Balkissoon, Ontario MPP for Scarborough Rouge River, that received second reading in October would amend Ontario's Highway Traffic Act to levy fines of at least $300 and up to $700 and add demerit points for offences.
Even without demerit points, a distracted driving conviction could boost your car insurance premiums, cautions Peter Karageorgos, manager of consumer affairs for the Insurance Bureau of Canada.
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