Having a phone within sight is no longer distracted driving by itself, rules B.C. judge

Being charged with distracted driving in British Columbia is getting a little bit harder, after a B.C. Supreme Court judge recently ruled that simply having a cell phone within sight of the driver isn't enough for a conviction.

The case came up when a B.C. driver was given a hefty ticket for distracted driving because his phone was wedged in the passenger seat, even though he wasn't touching it.

The driver lost in traffic court but appealed. The B.C. Supreme Court judge ruled in his favour.

"This case is important because there was a real lack of clarity in the law and inconsistency in judgments from traffic court," said Vancouver-based criminal lawyer Kyla Lee, who represented in the case.

"Some justices were saying that you had to have it affixed to the vehicle, some were saying loose in the vehicle is totally fine. Police officers were inconsistently enforcing [distracted driving rules]."

A spokesperson with the B.C. RCMP's traffic services acknowledged the decision and said distracted driving tickets will be handed out to drivers who are "using" their phone — which no longer includes only having it visible in the car.

30 days to appeal

The ruling impacts those who have been given similar distracted driving tickets for having a loose phone in the car. Drivers typically have 30 days to appeal a past conviction.

"If they're within the 30-day appeal period, people should be hurrying to file their appeals," Lee said.

According to ICBC, phones have to be in a fixed location and in hands-free mode.

They also must be able to be activated or deactivated with a single touch. But, Lee said, that's only if the phone is actually being used or touched.

"You just need to make sure that you actually leave the phone alone and you keep your eyes on the road," Lee told CBC's The Early Edition.

Convictions for 'using' phone

If the phone is being used — for navigation or to play music, for example — it still has to be secured in the vehicle with a phone mount or other mechanism.   

Lee said she's seen cases of drivers being convicted of distracted driving for picking up their phone if it falls off the seat or into the footwell.

"As soon as you touch that phone, if it's not installed in the vehicle in some type of mount or contraption, you are committing the offence," she said.

A distracted driving ticket currently costs $368 for a first infraction, plus a one-time $210 insurance premium and four penalty points on the driving record.

Those penalties are expected to go up another 20 per cent in November.