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Is Touching Your Mobile Phone Illegal When Driving?
No, simply touching your mobile phone is not illegal when driving but it is illegal to use your phone when driving. This means you cannot make calls, text, use apps, take photos or videos, or do anything that requires actively operating your phone.
The offence of ‘using’ a hand-held mobile telephone or other device capable of transmitting and receiving data falls under the legislation of Section 41D of the Road Traffic Act 1988 and Section 110 of the Road Vehicles (Construction and Use) Regulations 1986.
In practice, this means that you can touch your phone while driving, for example to mount it in a holder or move it out of the way, but you cannot interact with or look at the screen. The key, according to the UK law, is that touching your mobile is allowed, but it’s illegal to use or manipulate it in any way while driving.
To be guilty of an offence of using a hand-held mobile phone whilst driving the following must be proven:
Whilst there is no specific definition as to what is meant by ‘driving’ a vehicle, it is clear that if you are in control of the vehicle you will fall within the definition. This means that even if you are stationary in traffic you will still be considered to be driving.
The reference to supervising relates to people who are in a vehicle to supervise a learner driver or provisional licence holder. In these cases you have to keep the same level of awareness as the driver themselves and as such are not permitted to use a hand-held device.
The most common device which falls under the definition of being capable of ‘transmitting and receiving data’ is a mobile phone. It is important to clarify that this is not the only device that can make you guilty of an offence. Some other common examples include:
– Satellite Navigation Device
If in doubt, ask yourself the question: ‘Can I send anything from this device or receive data from anything which is not on the device?’.
There is no need for this functionality to be activated at the time you use the device and all that needs to be proven is that the device is capable of transmitting or receiving data. There is an exception to this rule as you can use a two-way radio without committing any offence.
For a device to be considered ‘hand-held’ it either is, or must be, held while being used.
Importantly, it has to be proven that you were holding the device in your hand for the offence to be committed. There would not be an offence if, for example, your phone was in a cradle or ‘holder’ within the vehicle.
The old legislation relating to mobile phone offences was very narrow when it came to what was considered a ‘use’ of the device. The now obsolete legislation referred only to sending or receiving; oral or written messages, facsimile documents, still or moving images and accessing the internet.
In 2022 the law was updated and the following is now considered a ‘use’ of the device:
(i) Illuminating the screen; Lighting up the screen of the mobile device while driving;
(ii) Checking the time;
(iii) Checking notifications;
(iv) Unlocking the device;
(v) Making, receiving, or rejecting a telephone or internet-based call;
(vi) Sending, receiving or uploading oral or interactive communication or written content;
(vii) Sending, receiving or uploading a photo or video;
(viii) Utilising camera, video, or sound recording functionality;
(ix) Drafting any text;
(x) Accessing any stored data such as documents, books, audio files, photos, videos, films, playlists, notes or messages;
(xi) Accessing an application;
(xii) Accessing the internet.
The result of this change means that in nearly all circumstances if your phone is in your hand you will likely be committing an offence.
There are three main ways in which you can be caught committing this offence.
Officers, whilst on duty, will regularly observe drivers checking for signs such as reflections, phone illumination and indications that someone is speaking or texting on a phone. If you are seen by an officer you will likely be pulled over and your details will be taken from you.
Independent witness footage is also becoming more and more prevalent with cyclists often travelling down lines of traffic reviewing the stationary drivers. While biking, cyclists may then forward the recorded footage to the police for review.
The police have also introduced a new AI-based camera known as the ‘Acusensus System’. This is currently a temporary camera which can be set up at the side of the road and captures images of the inside of passing vehicles. Artificial intelligence then processes these images to determine whether a driver is using their phone. These photos are then sent to a manned system for final review by the police.
The safest approach in all cases is to avoid using your phone in your car.
There are two circumstances in which the law provides a defence for using and holding a hand-held device.
Reference is made to the following uses:
Along with the above situations, the law enables you to contest a charge brought on if you factually deny one or more parts of the offence, such as using a device while driving. Most commonly it is the ‘hand-held’ aspect of the offence which is contended.
If you have not physically held the device then a defence may be available to you. It would be for the prosecution to prove that you were holding the device and this will often come down to the evidence of a police officer against your own personal evidence.
To create the strongest case possible it may be necessary to obtain witness or other evidence. Examples could be the witness evidence of a passenger in the vehicle, proof that the vehicle has a Bluetooth or hands-free system or evidence which explains why the officer may have been mistaken i.e. you were holding a wallet.
Should you believe you have a defence to this offence you must obtain independent legal advice.
Mobile phone offences are committed once the relevant aspects of the offence are made out. This means that you are still technically guilty of the offence even if you have an explanation as to why you committed the offence. It is in these situations that ‘special reasons’ arguments may apply, such as the need to use your mobile phone when driving for emergencies.
A special reasons argument is quite simply an explanation as to why the offence was committed which outlines that it would therefore be unfair to impose a sentence.
A special reason must be:
An example of a special reason may be that the device had fallen into the footwell of the vehicle and you simply picked the device up due to the hazard it was causing.
As indicated above, there isn’t a specific UK law that bans touching mobile phones, but the prosecution may instead seek to bring a charge of not being properly in control of a vehicle or driving without due care. Not being in proper control is a charge often brought for offences which do not quite reach the requirements of using a mobile phone whilst driving.
For this offence, the prosecution must prove that you were either in such a position that you could not have proper control of the vehicle or you could not have a full view of the road and traffic ahead.
This offence may come about if you are touching, but not holding, a phone or have other items in your hand which restrict your ability to hold the steering wheel or control the vehicle.
This is an alternative offence contained within Section 41D of the Road Traffic Act 1988 and Section 104 of the Road Vehicles (Construction and Use) Regulations 1986 which carries a smaller penalty of 3 points and a fine.
In some instances, a guilty plea to this alternative offence can be presented to the prosecution in an attempt to avoid receiving 6 penalty points for using a mobile phone. This approach is mainly available for cases where there is contention surrounding one or more elements of the offence such as the ‘use’ or ‘holding’ of the device.
For offences committed on or after the 1st March 2017 the sentence for using a mobile phone whilst driving is 6 penalty points and a Band A Fine (maximum £1000).
These cases are most commonly dealt with by way of a Conditional Offer of Fixed Penalty in which you can accept the 6 points and a reduced fine without needing to attend court. However, should you wish to defend the charge or raise a special reason it will be important to ensure a hearing date is listed to present the relevant argument.
In cases where you are at risk of a driving disqualification under the totting-up provisions, you may instead receive a Single Justice Procedure Notice or court summons.
For more, refer to: Tips to Avoid a Driving Ban.
You should now have an understanding of what makes you guilty of using a hand-held mobile phone or another electronic device whilst driving.
To recap, touching but not using a mobile phone while driving is allowed. The illegal offence is actively using a handheld phone to make calls, text, use apps, take photos/videos, or interact with the screen.
The law bans using a handheld device capable of transmitting data while driving or supervising a driver. This includes phones, tablets, and navigation devices. Police can catch offenders either by witnessing phone use directly or via footage from traffic cameras or witnesses.
The penalty for illegal phone use while driving is 6 points on your licence and a maximum £1000 fine. It’s critical to not manipulate your phone while behind the wheel outside of very specific exceptions.
At Caddick Davies Solicitors, we have a team of specialist motor defence lawyers who specialise in representing motorists at risk of disqualification or penalty points. If you are facing charges relating to mobile phone use, please get in touch.
From the simplest to the most complex of cases, we are here to help. We start every enquiry with an informal discussion to get a clear understanding of your circumstances and are here to answer any questions that you may have in confidence.
We will talk you through the offence you have been charged with and we will advise on your prospects of success at court.
You can contact our office for a free consultation at 0151 944 4967.
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