B.C. driver found guilty of using cellphone despite dead battery

B.C. driver found guilty of using cellphone despite dead battery

The court reasoned that earbuds plugged into phone constituted holding it

A B.C. motorist has been found guilty as charged of using an electronic device while driving in Surrey despite his claim the cellphone battery was dead.

The small claims case was heard in Richmond provincial court on April 8, with Judicial Justice Brent Adair presiding.

Judicial justices serve part-time and primarily hear traffic and bylaws cases, and ticketable offences under provincial law.

Patrick Henry Grzelak was found guilty of holding an electronic device while driving on Oct. 12, 2018 in Surrey, contrary to the Motor Vehicle Act.

The court heard he was alone in his black Mercedes, heading home and driving north on 152nd Street after a long day’s work. His Apple iPhone was in the centre cubby hole in the dashboard at the front end of the console, Adair noted in his reasons for judgment.

READ ALSO: Surrey Mounties ticket more than 700 distracted drivers in March

“The wire for his ear budges were plugged into the phone,” Adair noted. “He had the two earbuds in his ears, one on each side. The cellphone battery was dead. The screen was not illuminated, no music, no conversation or anything else was coming through the earbuds.”

Adair said the issue was whether the defendant was “using” the cell phone. Use, according to the Motor Vehicle Act, includes “holding the device in a position in which it may be used.”

If Grzelak was doing that, Adair reasoned, he must be convicted of the charge “even if the battery was dead, and even if the defendant was not operating one of the functions of the device.”

The cell phone was not in his hands or on his lap. But by plugging the earbud wire into it, he found, Grzelak “enlarged” the device.

“Since the earbuds were part of the electronic device and since the earbuds were in the defendant’s ears, it necessarily follows that the defendant was holding the device (or part of the device) in a position in which it could be used, i.e. his ears,” the Judicial Justice decided.

On the dead battery, he found, “simply holding the device in a position in which it may be used constitutes the offence, even if it is temporarily inoperative.”

Meantime, using an electronic device while you’re driving will draw a $368 fine. There’s also a “driver risk premium” to consider, escalating from $444 on the second conviction to $1,356 on the 10th, and continuing to rise beyond that.



tom.zytaruk@surreynowleader.com

Like us on Facebook Follow us on Instagram and follow Tom on Twitter

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Lefeuvre Road, near Myrtle Avenue, was blocked to traffic on Thursday (Dec. 3) after an abandoned pickup truck was found on fire. Police are investigating to determine if there are any links to a killing an hour earlier in Surrey. (Shane MacKichan photo)
Torched truck found in Abbotsford an hour after killing in Surrey

Police still investigating to determine if incidents are linked

The Integrated Homicide Investigation Team is investigating after a 30-year-old woman died in a Newton alley early this morning after being found with gunshot wounds in a vehicle. The incident happened in the 13700-block of 75A Avenue. (Photos: Lauren Collins).
Woman, 30, dead after early morning crash, shooting in Surrey

Surrey RCMP looking for vehicle, video surveillance in area of 13700-block of 75A Avenue

Surrey Pretrial in Newton. (Photo: Tom Zytaruk)
Surrey Pretrial hit with human rights complaint over mattress

The inmate who lodged the complaint said he needed a second mattress to help him manage his arthritis

Clockwise from top left: Karen and Otto Froelich; Karen and Judy Reefschlager; Reefschlager and Karen Froelich celebrate the 25th annivesary of Northcrest Care Centre (Contributed photos)
White Rock trio recognized for being ‘pioneers in seniors’ care’

Karen and Otto Froelich and Judy Reefschlager honoured by BC Care Providers Association

(Pixabay)
Canadians’ mental health has deteriorated with the second wave, study finds

Increased substance use one of the ways people are coping

A coal-fired power plant seen through dense smog from the window of an electric bullet train south of Beijing, December 2016. China has continued to increase thermal coal production and power generation, adding to greenhouse gas emissions that are already the world’s largest. (Tom Fletcher/Black Press)
LNG featured at B.C. energy industry, climate change conference

Hydrogen, nuclear, carbon capture needed for Canada’s net-zero goal

An RCMP officer confers with military rescuers outside their Cormorant helicopter near Bridesville, B.C. Tuesday, Dec. 1. Photo courtesy of RCMP Cpl. Jesse O’Donaghey
Good Samaritan helped Kootenay police nab, rescue suspect which drew armed forces response

Midway RCMP said a Good Samaritan helped track the suspect, then brought the arresting officer dry socks

People line up at a COVID-19 assessment centre during the COVID-19 pandemic in Scarborough, Ont., on Wednesday, December 2, 2020. Toronto and Peel region continue to be in lockdown. THE CANADIAN PRESS/Nathan Denette
COVID-19 vaccine approval could be days away as pressures mount on health-care system

Many health officials in regions across the country have reported increasing pressures on hospitals

(Needpix.com)
Pandemic has ‘exacerbated’ concerns for B.C. children and youth with special needs: report

Pandemic worsened an already patchwork system, representative says

Janet Austin, the lieutenant-governor of British Columbia, not seen, swears in Premier John Horgan during a virtual swearing in ceremony in Victoria, Thursday, Nov. 26, 2020. Horgan says he will look to fill gaps in the federal government’s sick-pay benefits program aimed at preventing the spread of COVID-19. THE CANADIAN PRESS/Jonathan Hayward
B.C. premier says province prepared to patch holes in new federal sick-pay benefits

Horgan said workers should not be denied pay when they are preventing COVID-19’s spread

Most Read