A Kelowna man learned the hard way that whether it’s being used or not, mobile phones are off limits while driving. (IMAGE CREDIT: STOCK IMAGE)

A Kelowna man learned the hard way that whether it’s being used or not, mobile phones are off limits while driving. (IMAGE CREDIT: STOCK IMAGE)

‘It’s not on’ distracted driver defence fails to sway B.C. judge

Man ticketed for using an electronic device while driving, despite it not being in use.

A Kelowna man learned the hard way that whether it’s being used or not, mobile phones are off limits while driving.

Samuel Austin Bainbridge was pulled over on Enterprise Way in September 2016 and fined $368 for using an electronic device.

What he explained at the time, and again last month while appealing the fine, was he wasn’t actually using the phone when he was pulled over.

“I wasn’t communicating with anyone,” said Bainbridge, at the time of the offence. “Force of habit to have phone in my hands.”

According to evidence presented, he may have been telling the truth. The officers said Bainbridge did not have the phone up to his ear, his lips weren’t moving and there was no light emanating from the screen. He was not operating any of the phone’s functions such as a phone call, texting, GPS, charging the phone or listening to music through the phone.

Bainbridge tried to argue that the officers should have to prove that the phone was in use to apply the fine, but Justice Justice Brian Burgess rejected that defence.

Burgess, in his decision, highlighted that the Motor Vehicle Act states: A person must not use an electronic device while driving or operating a motor vehicle on a highway. Section 214.1 of that law provides some definition on what use is, and it includes simply holding the device in a position in which it may be used.

READ MORE: KELOWNA COPS CRACK DOWN ON CELL PHONE USING DRIVERS

“Bainbridge, by holding the phone in his right hand while driving was holding the phone in a position in which it may be used,” Burgess wrote.

“Based on the evidence before me Crown has proven its case beyond a reasonable doubt and I find Mr. Bainbridge guilty of this offence … The fine will be the ticketed amount payable by April 30.”

ICBC reports that distracted driving kills 78 people a year. In an effort to curb it, ICBC’s Driver Risk Premium program was put into effect March 1.

VIDEO: CHECK OUT THIS DISTRACTED DRIVING SIMULATOR

As previously announced, drivers with two convictions for the use of electronic devices while driving over a three year period will now face added and higher premiums. They could pay as much as $2,000 in penalties – an increase of $740 over the previous penalties –in addition to their regular vehicle insurance premium.

Two pilot projects exploring how technology can help combat distracted driving in our province are also underway, as announced in the fall. ICBC is working with 139 volunteer drivers from across the province on a three-month pilot. Drivers will share feedback about their experiences with a small telematics device installed in their vehicle which blocks the use of their handheld phone when the participant is driving.

Starting this month, police will also begin to test new distracted driving scopes with further abilities to capture dangerous driving behaviours. Police will be testing the units for usability and effectiveness in all weather and traffic conditions.

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