B.C. driver found guilty of using cellphone despite dead battery

The court reasoned that earbuds plugged into phone constituted holding it

A B.C. motorist has been found guilty as charged of using an electronic device while driving in Surrey despite his claim the cellphone battery was dead.

The small claims case was heard in Richmond provincial court on April 8, with Judicial Justice Brent Adair presiding.

Judicial justices serve part-time and primarily hear traffic and bylaws cases, and ticketable offences under provincial law.

Patrick Henry Grzelak was found guilty of holding an electronic device while driving on Oct. 12, 2018 in Surrey, contrary to the Motor Vehicle Act.

The court heard he was alone in his black Mercedes, heading home and driving north on 152nd Street after a long day’s work. His Apple iPhone was in the centre cubby hole in the dashboard at the front end of the console, Adair noted in his reasons for judgment.

READ ALSO: Surrey Mounties ticket more than 700 distracted drivers in March

“The wire for his ear budges were plugged into the phone,” Adair noted. “He had the two earbuds in his ears, one on each side. The cellphone battery was dead. The screen was not illuminated, no music, no conversation or anything else was coming through the earbuds.”

Adair said the issue was whether the defendant was “using” the cell phone. Use, according to the Motor Vehicle Act, includes “holding the device in a position in which it may be used.”

If Grzelak was doing that, Adair reasoned, he must be convicted of the charge “even if the battery was dead, and even if the defendant was not operating one of the functions of the device.”

The cell phone was not in his hands or on his lap. But by plugging the earbud wire into it, he found, Grzelak “enlarged” the device.

“Since the earbuds were part of the electronic device and since the earbuds were in the defendant’s ears, it necessarily follows that the defendant was holding the device (or part of the device) in a position in which it could be used, i.e. his ears,” the Judicial Justice decided.

On the dead battery, he found, “simply holding the device in a position in which it may be used constitutes the offence, even if it is temporarily inoperative.”

Meantime, using an electronic device while you’re driving will draw a $368 fine. There’s also a “driver risk premium” to consider, escalating from $444 on the second conviction to $1,356 on the 10th, and continuing to rise beyond that.



tom.zytaruk@surreynowleader.com

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