Mackoff Mohamed

1801-808 Nelson Street

Vancouver, BC  V6Z 2H2


© 2019 Mackoff Mohamed 

Vancouver Boutique Law Firm


Can you hold your phone while driving?

November 20, 2018

1. Is it illegal to passively hold your phone while driving?


2. That was the question before the BC Provincial Court in three recent cases where drivers disputed traffic tickets for using their phones while driving. The cases each involved drivers passively holding their phones while driving without using their functions:  


       a. On March 12, 2018, a judge found a Kelowna driver guilty of using his phone while                   driving after police observed him holding the phone in his right hand while operating his               vehicle. The driver testified he was simply holding his phone out of habit and was not                     actually watching or using the phone’s functions at the time. The judge, however, found that           the mere act of holding the phone was enough to find the driver guilty of using his phone               while driving.


       b. On July 16, 2018, a judge found a Victoria driver not-guilty of using his phone while                 driving after he successfully argued that, although he was holding the phone in his hand, it             was disabled by certain software that prevented the phone’s functions from being used while         the vehicle was in motion. The judge found that since the phone’s functions were incapable           of being used while the car was in motion, the driver could not have used his phone while             driving, and just passively holding it was not itself enough to find him guilty.


       c. On July 31, 2018, a judge found a Vancouver driver guilty of using his phone while                     driving after police observed him holding the phone in his hand while operating his vehicle.           The driver testified he was moving the phone from his passenger seat to his jacket pocket,             and only held the phone in his hand for a brief moment. He was adamant he never used the             phone’s functions or even looked at the screen. The judge, however, found that simply                   holding the phone in his hand, if even for a brief moment, was enough to find him guilty of           using his phone while driving. In arriving at his conclusion, the judge considered other                   recent cases where British Columbia drivers were found guilty of using their phones while             driving for simply holding them their hands, including cases where the phones were dead at           the time.   


3. The judges in these cases were all considering a section of the British Columbia Motor Vehicle Act which prohibits drivers in British Columbia from holding an electronic device “in a position in which it could be used” while operating a vehicle.


4. These three recent cases demonstrate there is some ambiguity in British Columbia about whether simply holding a phone in your hand, even if its dead or incapable of use, is illegal. What is clear is that under the current state of the law, a judge could very well find you guilty of using a phone while driving for just passively holding it in your hand. Until the law is further clarified by the legislature or the court system, the best advice is to keep your hands entirely off your phone while driving unless you have an approved hands-free device, even if the phone is dead or functionally disabled.



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