The Ins and Outs of Fighting a Distracted Driving Ticket

$368 and Four Demerits? Holy Hell!

For starters…don’t use your smartphone while you’re driving. Seriously. It’s a total jackass move and really dangerous. But within that truth I ask you to consider my circumstance.

It’s November and you’re driving to see your daughter’s soccer game at some field in Burnaby you’ve never heard of. You’re a responsible sort, so before you go you punch the address into Google Maps set if for handsfree and you’re off. Everything is going fine until you get to the intersection of Grandview and Boundary. Total gridlock. You’re in the middle lane and for some reason your iPhone, sitting on the passenger seat beside you, has stopped burping out the instructions. You can’t pull over left because there’s bumper-to-bumper cars. Ditto right. You’re about to head on the highway and are concerned that you won’t know which exit to take. So you reach over to shake your phone, fearful that it’s gone into sleep mode and wham…there’s the friendly face of Officer Joss, who’s been walking in the completely stopped traffic taking scalps from the smartphone violators.

Busted.

You pull over, get your ticket. Day ruined. But is there anything you can do? Here’s the Province’s official guide. But I’ve spent some time in traffic court in my day and I just went through this process, so I figured I’d set out the practical options you have once the ticket is issued. And note…this is not legal advice. I’m not a practicing lawyer so this is just a layperson’s experience with the process, nothing more.

When You’re Pulled Over

1. Talk the officer into of giving you a break? This is anecdotal, but my information is that when it comes to distracted driving the police have been given firm marching orders to be inflexible on these offences. This is a real problem in society, so I’m afraid if you’ve been pulled over, you’re getting the ticket.
2. Given that, be polite, but don’t say anything or admit anything to the officer. They will be taking notes after the incident and they will rely on those notes at trial. Don’t say, “I know I did it, but can you give me a break,” because you won’t get the break and you’ll have made a problematic admission should you head to trial.

Disputing The Ticket

1. You will have 30 days after the ticket is issued to file the notice of dispute. If you miss that, it’s a pain-in-the-butt process to get an extension. So follow the instructions on the ticket and send your dispute in.
2. You’ll receive a Notice of Hearing in the mail. It will be mailed to the address on your Driver’s License.
3. If you can’t make the date set, the Notice give you instructions on how to ask for an adjournment. Do this well in advance.

Attending the Hearing

1. Okay, now stuff is about to get real. Traffic court is the lowest rung of court, but it’s still court and it’s nerve-wracking. For most Vancouverites, your hearing will be downtown at the Provincial Court House on 800 Hornby. Dress appropriately. You don’t have to dress for a funeral, but choose something that shows respect for the court and the judge.
2. When you get to the traffic court, there will be a number of police officers milling about with a stack of papers in their hand. They will be waking around calling the names of the accused. If you recognize the face of your officer (the one who gave you the ticket) you should just go up to them and identify yourself.
3. If you don’t see your officer and no one is calling your name, then you may have just caught a break. In traffic court there are not Crown Prosecutors like in other criminal courts. The Police Officer is required to fulfill that function. They step forward and bring the cases and call up the accused (that’s you). If your officer is not there and your name has not been called you should go to the courtroom you’ve been assigned (there’s a monitor outside the courtrooms with the names of all the accused and the courtrooms you’re assigned to). Once the proceedings begin, the Judge will ask all the people in the courtroom their names. If, after the cases have all progressed (most of them will be pleas, very few matters have an actual hearing with evidence) and your officer does not attend, the Judge will bring you forward. He/she may note that there is no one there to call evidence against you and dismiss the charge. Do not agree to another hearing. Politely state you’ve taken time off work and wish to proceed.
4. Unfortunately, with distracted driving tickets, they’re usually done in a sting operation so several are given out on the same day. That means it’s rare that the officer won’t attend. (If you got a random ticket, when a officer just happened to see you, you stand a better chance).
5. If your officer is there, the two of you will go into a meeting room to discuss the matter. They will likely have reviewed your file, albeit briefly. At this juncture they may ask you how you intend to proceed.

Plea as Registered Owner

1. This is you chance to bargain. Be very respectful of the officer. Usually your best option is to ask whether they would consider “a plea to registered owner.” This means that you’ll still have to pay the fine but the demerits—all 4 of them—will not be on your driving record and will not affect your insurance rates. If they say yes, take it. They may want hear your side of the story and if you have prior violations—which they’ll be aware of—it’s very unlikely. Anecdotally, I understand many officers won’t consider these pleas anymore. Mine did not so I was hooped—although somewhat gratingly the one person who retained a lawyer in my courtroom was able to get this plea—so insert your thoughts on how money shields you from consequences even at this level.
2. Note that you have to actually be the registered owner of the car in the incident to plead this.
3. Also note that the Judge does not have to accept this agreement even if the officer recommends it (that goes with all plea deals). He/She may ask you some questions before imposing the sentence and if they’re not satisfied my still levy the full fine.

Fine Reduction

1. More likely is that the officer will consider a fine reduction. Distracted driving is a $368 and the typical reductions are reducing the fine to $150 or $200 plus giving time—up to several months—to pay. Again, you likely need a pretty clean driving record for this to happen.
2. In either event, if you take a plea you are agreeing to plead guilty. Your officer will attend at the front of the court and will call your name. You’ll head up, stand before the judge—who’ll you’ll call Your Worship—and he/she will ask you if you your name and if you wish to plead guilty. You will say yes, he/she may ask you some questions about the event and about your financial circumstances. Then the office may make some comments and indicate that they agree to Reg’s Owner or a Fine Reduction and the Judge will then make their ruling.
3. You’re all done.

You Want to Fight it?

1. Good on you, but please know these cases are extremely difficult to win. If your hand was on your phone regardless of whether you were actively using it, you’re hooped. There’s some case law that say if your phone is out and not in a cradle that may be enough. So I’m in no position to offer legal advice, but you need an exceptional set of facts to succeed here.

So the end result is that I got my fine reduced to $200. My initial hope was the my officer would not show up, but that didn’t pan out. My second hope was that she would let me plead as registered owner, but she firmly said she never does that and I believed her. At this juncture I was prepared to head to trial, but ultimately knew I’d lose. This was confirmed by the demeanour of the Judge who was very harsh on anyone in His courtroom charged with distracted driving. The only real sour taste came from the one lawyer present who was the only person who secured a registered owner charge underscoring certain inequities. If I had a do over I would not have made a deal, but would have plead guilty and directly asked the judge for the Registered Owner charge citing his using it a few accused before and politely pointing out how bad it would look if only accused with lawyers were granted this indulgence, but I had already made my deal with Officer Joss so felt bad going back on it.

So remember—crime doesn’t pay. Unless you hire a lawyer, then don’t sweat it.