Cell Phone/Driving Law To Be Challenged

November 5, 2013

Appearing in Magistrates Court yesterday [Nov 4] Samaela Cannonier pleaded not guilty to using a hand-held device whilst operating a vehicle.

Her lawyer Saul Dismont informed Senior Magistrate Archie Warner that Ms Cannonier would be mounting a legal challenge to Bermuda’s existing legislation and developing case law about the use of hand-held devices whilst operating motor vehicles.

Mr Dismont cited a previous cellphone case which went to appeal and where Chief Justice Kawaley had referred, in his judgment to the extreme breadth of the legislation as written.

Mr Dismont said that currently, it would seem that a cellphone that was packed in a bag that was stored in the trunk of a car could still result in a charge and conviction for “unlawfully using a hand-held device” whilst driving.

The Senior Magistrate commented that it would be an interesting case and set trial for 11th February 2014.

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Comments (19)

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  1. Triangle Drifter says:

    Yet another poorly thought through piece of legislation conceived by the PLP that has to be rewritten by the OBA so that it makes sense.

    Good grief! This was not complicated. There are cell phone laws all over which could have been copied.

    • Tommy Chong says:

      There’s nothing wrong with the written law the problem is the reading comprehension of some.

      No person shall drive, or cause or allow any other person to drive, a
      motor car on a road if he is using—
      a hand-held mobile telephone;
      a hand-held device that can perform an interactive communication
      function by transmitting or receiving data, other than a two-way
      radio; or
      a hand-held electronic entertainment device that can produce
      music or gaming systems (wireless and non-wireless).

      The key words here are hand & held combined by a hyphen. The law does not read bag-held or trunk-held so there should be no confusion. The only way the defendant would have an argument is if she was on a bike & had the phone stuffed in her helmet like some do then she could say it was a helmet-held device though at some point the phone would have to be adjusted in the helmet by a hand while riding because these devices are not designed for that. There is no logical argument when it comes to drivers with this law. If someone wants to drive & talk then get a wireless earpiece so the device will be ear-held not hand-held.

      • cmbbda says:

        What about an ipod/ iphone thats not connected in the ears via headpgones but ON in the jacket? What about an ipod/ iphone thats connected to the ears via phones but NOT on? What about the ear phones that have ‘tap to go’ button that can answer calls? ‘USE’ is not defined and nor is ‘hand-held’. How can the police/ courts PROVE that an ipod was ON and therefore in use — can they detect electonric signals.. or do they have super sensitive hearing? Its totally badly written and unenforceable. Good luck Ms. Cannonier!

        • Tommy Chong says:

          In section 3 of the regulation your questions are answered.

          For the purposes of this regulation—
          a mobile telephone or device referred to in regulation 44(1) is to be
          treated as hand-held if it is, or needs to be, held in the hand at
          some point in order to operate it;
          “interactive communication function” includes the following—
          sending or receiving oral or written messages;
          sending or receiving facsimile documents;
          sending or receiving still or moving images; and
          providing access to the Internet;
          “two-way radio” means any wireless telegraphy apparatus which
          is designed or adapted for the purpose of transmitting or receiving
          spoken messages

          The police can’t & never will be able to determine wether the device was on but if you have it in your ears its a good indication it was. Twisting the words of the law with omniscient ifs & buts should not be regarded as a sufficient defence. Just the same way as someone found with a bladed article six inches or over on them will not be excused by saying they weren’t planning to use it the former should be treated the same. If you don’t want to be charged then pack the earphones away & wait till reaching your destination to put them on don’t expect police to be all knowing & seeing.

  2. WhistleBlower says:

    Yeah like the “hoodie” law! Tsssshhhh!!!!

  3. Headless Horseman says:

    Tommy Chong’s comment is 100% dead on!
    It’s Cops that dont READ the Law and then lawyers trying to bend the words!

  4. Really?? says:

    Let’s not talk about those motor bike riders that ride with iPods or other musical devices with the ear plugs in their ears and their crash helmets on and they can’t even hear an Emergency Vehicle coming. They need to slammed with fines too then!!

  5. Y-Gurl says:

    The law should be challenged, it’s not correct and this is one of the avenues that “we the people” have to get it fixed, cops don’t know the law they can’t even enforce it so it’s up to us to know our rights, our laws and what we can and shouldn’t challenge and how can we know if we are breaking any laws if the law itself is unclear, then it becomes open to interpretation and the cop assumes he or she is always correct (not!)

  6. just a thought says:

    I find it funny that the law is being challenged now that the Premier’s daughter has been caught & brought before the courts. This should be interesting! SMH!

    • Sandy Bottom says:

      It isn’t the first time this law has been challenged. Tommy Chong has good points but the fact remains it’s a very badly drafted law. It is not clear what is / isn’t illegal, and the basic requirement for drafting a law should be that it is clear.

      • Tommy Chong says:

        Laws will always be challenged by defendants because its part of their defence wether guilty or not. The last time it was challenged IMO the defendant should have never won the case since there is no humanly possible way for someone to determine wether someone riding with earphones had them playing at the time & just having them in the ear should be evidence enough. People charged with carrying bladed articles don’t get their case thrown out because there’s insufficient evidence that they planned to use it. The law is clear enough to me but please let me know how it could be clearer since I may have missed something.

        No person shall drive, or cause or allow any other person to drive, a
        motor car on a road if he is using—
        a hand-held mobile telephone;
        a hand-held device that can perform an interactive communication
        function by transmitting or receiving data, other than a two-way
        radio; or
        a hand-held electronic entertainment device that can produce
        music or gaming systems (wireless and non-wireless).

        For the purposes of this regulation—
        a mobile telephone or device referred to in regulation 44(1) is to be
        treated as hand-held if it is, or needs to be, held in the hand at
        some point in order to operate it;
        “interactive communication function” includes the following—
        sending or receiving oral or written messages;
        sending or receiving facsimile documents;
        sending or receiving still or moving images; and
        providing access to the Internet;
        “two-way radio” means any wireless telegraphy apparatus which
        is designed or adapted for the purpose of transmitting or receiving
        spoken messages

        • seriously says:

          ok so you do relize that they are giving tickets for using blue tooth devices as well where is this clarified in the law !??

  7. Cranberry says:

    I find drinking coffee, while driving, more challenging than the cell phone thing. … thank god there’s no law against that… However reading a newspaper while driving is quite easy so probably no law required there… Applying makeup? not so sure on that one… that would probably require “due care and attention. ..”

    • Tommy Chong says:

      I believe that drinking coffee, reading a paper and applying makeup should all be illegal whilst driving & anything else that takes your attention off the road. There are numerous studies that have proven that it’s not possible for anyones brain to multitask & when trying to do more than one thing at a time the brain must delegate what comes first & its not always the correct response. I see this all the time on the road & even seen many who even seem not to know how to delegate one arm to switch on the indicator while the other holds the steering. It’s not necessarily a bad thing to have confidence but can be detrimental when its misconceived confidence.

  8. Cranberry says:

    Oh and it’s not a stupid law – it’s a superfluous law…

  9. Bermuda123 says:

    How about we just clarify the application of the law? Surely the point is to avoid someone being distracted whilst driving by needing to look away from the road and use their hands to operate the phone/ipod etc.

    If an earpiece/bluetooth is fine, then why is it not fine to have the music playing either through the device or through the radio etc? Possibly ban headphones whilst driving.

    • Tommy Chong says:

      It is clarified as to why an earpiece/bluetooth is fine…

      a mobile telephone or device referred to in regulation 44(1) is to be
      treated as hand-held if it is, or needs to be, held in the hand at
      some point in order to operate it.

      When you use an earpiece/bluetooth the device does not need to be in your hand to operate & I’m quite sure the police wouldn’t stop someone for having the device playing through the radio as long as they are not reaching for it to change the song while driving. When it comes to having the device’s earphones on it’s more than likely the device is in the lap or pocket & at times its being operated unless on a playlist but the police cannot allow for this grey area because there will be those who lie to take advantage.

  10. Da plumber says:

    Often legislation is challenged I don’t like the law but its law abide or get caught still if there is a loophole some of us will sneak threw