Image Credit: ADOBE STOCK

Using an app to disable your phone while driving isn’t a defence to B.C. distracted driving laws after all.

Previous court decisions that found Patrick Tannhauser of Vancouver not guilty of distracted driving because of the app were overturned by the B.C. Court of Appeal today, June 1.

And if those previous court rulings made the distracted driving laws confusing, the appeals court justices made it abundantly clear.

“The (Motor Vehicle Act) does not permit a driver to hold a device when its functions are disabled,” Chief Justice Robert Bauman wrote. "The statute creates no exceptions for devices with suspended functions, and I find no basis to conclude such an exception exists in the broader statutory context.

"In my view, holding an electronic device on top of a steering wheel, in clear view, is sufficient to constitute holding it in a position in which the device may be used. This view is supported by the ordinary meaning, context, and intention behind the statute."

Bauman said he found nothing in the Act itself, nor in the preamble or discussion of the legislature that set any exceptions. He found two previous rulings in the case in which the judges found the disabled cell phone ‘not a cell phone’ was an ‘assumption’ not supported by the legislation.

"I note that a cellphone permanently without functionality must cease to be, at some point, an electronic device. I would not think the above definitions include a device that no longer has any capacity to make phone calls or compute data because it is, for example, disassembled or badly broken. But (this case) does not require a determination of what this point is; it is clear the device here was temporarily, not permanently, without functionality. It retained its ability to distract by virtue of a screen that might light up, and the possibility it might return to full function.

"That electronic devices with suspended functionality remain electronic devices is consistent with an ordinary understanding of objects. The functions objects possess generally are distinct from the ways they are capable of functioning in a specific moment. A lamp unplugged is still a lamp; a cellphone turned off (or with the phone function otherwise disabled) is still a cellphone.

"I would decline to uphold the strained reading that an object commonly understood to be a telephone is not in fact a telephone for the purposes of this statute."

The new decision in the case has now fully dispatched the last of three circumstances that threatened B.C. distracted driving prohibition.

Courts have previously ruled that even drivers not using their phones were distracted driving if the phone was in reach and another case found even a ‘dead’ uncharged phone within reach of the driver is distracted driving.

However, in another case, a judge ruled that simply having a cell phone in a vehicle does not constitute the ‘use’ of a cell phone. Distracted driving in B.C. will cost you $620 for a first infraction, including a $368 ticket, a $252 ICBC Driver Penalty Point Premium plus four demerit points on your licence.

Most cell phones offer standard apps with a ‘driving mode’ that disables all functions when it detects that someone is moving and some will even return texts advising that the user is currently driving and can’t receive texts.

Get two distracted driving tickets in a three-year period can cost you up to $2,500 in fines and ICBC costs.

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