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-   -   NSW fined for using mobile while driving - I wasn't. Any advice? (http://forum.e46fanatics.com/showthread.php?t=958028)

Nae323 11-26-2012 11:53 PM

NSW fined for using mobile while driving - I wasn't. Any advice?
 
I'm asking you guys for any help.
Before I go into this - NO I was NOT on my phone.

On Friday after work I went through an intersection where a cop car was facing me waiting to turn right. He threw the lights on, did a u-turn and pulled me over. The senior constable told me I had been seen using my mobile phone while driving, while the other cop looked over my car.
As I was trying to explain that I wasn't using a phone, I was holding my hand to a small bite on my cheek that was sore, the other cop came around and kept insisting that I was on my mobile. He kept interrupting me while I was trying to tell them what I was doing, he said he saw my phone, it's black (who's isn't - but my case is half red), and when I asked for video proof he said no, he saw me with his eyes.
They went back to the car, the senior constable came back with a $298 fine and 3 points. I tried to show him my call log on my phone and he wouldn't have a bar of it.

I have called Telstra, they won't give me ANYTHING, the **********s. My outgoing log cannot be sent to me until my bill date 16/12. Incoming logs cannot be given out unless subpoenaed by police or court.
They won't even type me a simple letter stating there is no activity on my phone for hours before the fine.

I only have the 21 days to get my stuff sorted. Anyone have any advice for me?

E46 Coupe 11-27-2012 12:06 AM

Had another friend with a similar story last week, he had a bluetooth unit that was already connected to the phone that he wasn't using (he was also holding his face).
Got sent off with a fine and points.

Didn't help you here - I know.

infini 11-27-2012 12:09 AM

sounds to me like the only thing you can really do is contest it in court.

DeclanM3 11-27-2012 12:14 AM

Try speaking to a manger or go into a Telstra shop and see what they can do?

gueste46 11-27-2012 12:26 AM

If you decide to contest the matter in court, and I believe you should, the 21 days that you have is just to advise that you will be pleading not guilty. You will then be advised of a court date.

Plenty of time to get your documents in order. You really only need to prove that there were no incoming or outgoing calls around that time. No other reason you would be holding the phone to your head.

Oh, and maybe photograph the bite mark.

all4show 11-27-2012 12:33 AM

Quote:

Originally Posted by Constantine (Post 14929598)
If you decide to contest the matter in court, and I believe you should, the 21 days that you have is just to advise that you will be pleading not guilty. You will then be advised of a court date.

Plenty of time to get your documents in order. You really only need to prove that there were no incoming or outgoing calls around that time. No other reason you would be holding the phone to your head.

Oh, and maybe photograph the bite mark.

this. minus the bite mark haha

btw nice sig pic

forzamilan10 11-27-2012 12:40 AM

Definitely take it to court, if not the for the fine, you don't want to lose 3 demerit points over a false accusation.

DesiredM 11-27-2012 12:40 AM

Gather all the evidence you can
- your call logs
- bills
- the exact time the fine was given
- photo of the bite mark would be good, you never know.

Go to court and explain your story, especially if you have a clean driving record.

If that doesnt work then you might just have to cop the fine on the cheek.... (Haha)

DeclanM3 11-27-2012 12:41 AM

Quote:

Originally Posted by Constantine (Post 14929598)
If you decide to contest the matter in court, and I believe you should, the 21 days that you have is just to advise that you will be pleading not guilty. You will then be advised of a court date.

Plenty of time to get your documents in order. You really only need to prove that there were no incoming or outgoing calls around that time. No other reason you would be holding the phone to your head.

Oh, and maybe photograph the bite mark.

Except there are new laws in NSW which prohibit the driver touching a mobile device (that isn't in a fixed cradle) whilst operating the motor vehicle. The judge could turn around and say that it doesn't matter if the phone wasn't in 'use', you could've still been holding it. You could've been dialling and the person on the other end didn't pick up or your phone failed to place an outbound call...

It's tough because I don't believe phone records will be enough to prove beyond reasonable doubt that you weren't touching your phone.

Have you tried going down to the local police station and telling them your story and asking for their advice? Sometimes that can be enough for the officer to drop the charges...

Maybe someone with more experience will chime in.

EDIT: Turns out I don't know sh!t. Listen to Tim!

Nae323 11-27-2012 12:51 AM

Quote:

Originally Posted by DeclanM3 (Post 14929575)
Try speaking to a manger or go into a Telstra shop and see what they can do?

I have done both, no help.
Quote:

Originally Posted by Constantine (Post 14929598)
If you decide to contest the matter in court, and I believe you should, the 21 days that you have is just to advise that you will be pleading not guilty. You will then be advised of a court date.

Plenty of time to get your documents in order. You really only need to prove that there were no incoming or outgoing calls around that time. No other reason you would be holding the phone to your head.

Oh, and maybe photograph the bite mark.

I do plan on going to court, I'm just worried I won't be able to get the evidence I need. I have a photo of the bite, a friend insisted, funnily enough.
Quote:

Originally Posted by DesiredM (Post 14929628)
Gather all the evidence you can
- your call logs
- bills
- the exact time the fine was given
- photo of the bite mark would be good, you never know.

Go to court and explain your story, especially if you have a clean driving record.

If that doesnt work then you might just have to cop the fine on the cheek.... (Haha)

Ha. My record is clean, I will get a copy of that too.
Quote:

Originally Posted by DeclanM3 (Post 14929631)
Except there are new laws in NSW which prohibit the driver touching a mobile device (that isn't in a fixed cradle) whilst operating the motor vehicle. The judge could turn around and say that it doesn't matter if the phone wasn't in 'use', you could've still been holding it. You could've been dialling and the person on the other end didn't pick up or your phone failed to place an outbound call...

It's tough because I don't believe phone records will be enough to prove beyond reasonable doubt that you weren't touching your phone.

Have you tried going down to the local police station and telling them your story and asking for their advice? Sometimes that can be enough for the officer to drop the charges...

Maybe someone with more experience will chime in.

The cop said he saw it against my face, which could only mean making a call I suppose. My phone is set up through my Dynavin so I have no reason to have it to my head. Ear warmer?
I thought about going to the station, but without my phone records what good would it do? Plus I intended on putting in a formal complaint about the younger officer, who conducted himself quite unprofessionally. Rude bastard.

gueste46 11-27-2012 12:58 AM

Quote:

Originally Posted by DeclanM3 (Post 14929631)
Except there are new laws in NSW which prohibit the driver touching a mobile device (that isn't in a fixed cradle) whilst operating the motor vehicle. The judge could turn around and say that it doesn't matter if the phone wasn't in 'use', you could've still been holding it. You could've been dialling and the person on the other end didn't pick up or your phone failed to place an outbound call...

It's tough because I don't believe phone records will be enough to prove beyond reasonable doubt that you weren't touching your phone.

Have you tried going down to the local police station and telling them your story and asking for their advice? Sometimes that can be enough for the officer to drop the charges...

Maybe someone with more experience will chime in.

Once a ticket is written it is out of the hands of the Police. It is now dealt with by the State Debt Recovery Office. Any and all submissions will be determined by them unless the matter goes to court. He was not charged with an offence. He simply received a penalty notice of a breach of the Motor Traffic Act.

A well presented, logical defense, with supporting documentation in Court has a reasonable chance of a succesful outcome. Local court Magistrates very often disbelieve the evidence of Police especially when it is just their word on something.

It is reasonable that the Police saw your hand to your face and assumed you were on the phone. Your call logs will support the fact that no call was made or received thus greatly reducing the likelyhood in the Magistrates mind that your were using the phone. It is not a big leap to suggest that the Police were simply mistaken. It is also a fact that Magistrates and Judges know that SOME Police will lie to secure a conviction.

You have a very good chance of getting off.

hizhinezz 11-27-2012 01:29 AM

I'd leave off the reprimand for the cop, judge may see that as comparative and deliberate muckraking. Just tell your story being evidence feel confident because you are indeed telling the truth and appeal to the notion that it is not practical to force people to keep their hands sways from innocently touching their faces while driving. Is it illegal to apply lipstick or lip balm while driving? Definitely being your headset and the receipt and show that you already use a hands free because its easier to do that than hold the phone!

gueste46 11-27-2012 01:43 AM

Quote:

Originally Posted by hizhinezz (Post 14929772)
I'd leave off the reprimand for the cop, judge may see that as comparative and deliberate muckraking. Just tell your story being evidence feel confident because you are indeed telling the truth and appeal to the notion that it is not practical to force people to keep their hands sways from innocently touching their faces while driving. Is it illegal to apply lipstick or lip balm while driving? Definitely being your headset and the receipt and show that you already use a hands free because its easier to do that than hold the phone!

Agree about not say anything negative about the cop. Just simply say he was mistaken, that he may genuinely think he saw you using the phone but he was mistaken.

bimmerlaw 11-27-2012 01:56 AM

What Constantine said x2.
Also if you have a good record i.e. this wouldn't put you in a licence loss situation, the Magistrate is more likely to to ask himself why you would go to the trouble of contesting it if you were not innocent. There is a downside in that if you don't win you could be lumbered with some court costs. Remember also, its a pain for the police if you take it to court, lot of time, trouble & mucking around for them over a small case. So its worth you trying to talk the authority out of it.
You don't say if it was dark. If it was I'd push the police were mistaken line.

BrisM3 11-27-2012 01:57 AM

Declan,

It appears as though I have failed!

I would have thought that by now you would know that the OP does not have to prove beyond reasonable doubt that he was not using the phone - it is for the prosecution to prove beyond reasonable doubt that he was (whether it be use or hold will depend on the particular legislative provision).

OP - on the back of the ticket there should be provision for you to elect to have the matter proceed to Court. If you want to contest the matter then that is what you should do - elect for the matter to go to Court.

Then, spend the time gathering your evidence and proceed to trial.

Good luck.

Tim.


Quote:

Originally Posted by DeclanM3 (Post 14929631)
Except there are new laws in NSW which prohibit the driver touching a mobile device (that isn't in a fixed cradle) whilst operating the motor vehicle. The judge could turn around and say that it doesn't matter if the phone wasn't in 'use', you could've still been holding it. You could've been dialling and the person on the other end didn't pick up or your phone failed to place an outbound call...

It's tough because I don't believe phone records will be enough to prove beyond reasonable doubt that you weren't touching your phone.

Have you tried going down to the local police station and telling them your story and asking for their advice? Sometimes that can be enough for the officer to drop the charges...

Maybe someone with more experience will chime in.


DeclanM3 11-27-2012 02:08 AM

Quote:

Originally Posted by BrisM3 (Post 14929858)
Declan,

It appears as though I have failed!

I would have thought that by now you would know that the OP does not have to prove beyond reasonable doubt that he was not using the phone - it is for the prosecution to prove beyond reasonable doubt that he was (whether it be use or hold will depend on the particular legislative provision).

OP - on the back of the ticket there should be provision for you to elect to have the matter proceed to Court. If you want to contest the matter then that is what you should do - elect for the matter to go to Court.

Then, spend the time gathering your evidence and proceed to trial.

Good luck.

Tim.

Shouldn't you be in court?! :P

Mate, nothing against your teaching, it was exactly the same in Legal Studies at school. I remember 1 rule and think that applies to everything :rofl:. Epic fail! I should just give up with my shotty legal advice, I'm worse than Saul Goodman!

Constantine, I've had multiple friends who have gone to their local police station following a fine and been told that they are not required to pay it due to various reasons. :hmm:

M3N7AL 11-27-2012 02:12 AM

Get a Barrister, he will be able to subpoena your phone records.

Also, if that fails, go to court and get your barrister to ask the judge to request the police subpoena your phone records which they will do.

If you weren't on the phone, the records will prove that and you will walk. Simple, it's happened to me. The process was a pain in the ass. Funny thing was i didn't have a phone on me and the police searched the car inside out and couldn't find it, they even searched me. They came to the conclusion that i'd hid it which was stupid. Phone records proved i hadn't been using my phone. Case dismissed.

Also, your record has nothing to do with it and can't be considered at all, your criminal/driving history can only be looked at during sentencing. They look at it as a way to choose your punishment. So don't worry about whether you have a good record or not. You can't be judged on that. You will simply be judged on the day's events and that's it.

Good luck.

YGOAMG 11-27-2012 02:25 AM

You don't have to actually be using it, just in possession..

So I wouldn't worry about the phone records ..


Take it to court.. What's a bit of time and money at the end of the day!!
Will be a good day out ..
At the end if the day that cop will have to say under oath that he saw you on the phone,
You'll have to say under oath that you wernt

Who's got the balls to lie??

Mitch E46 11-27-2012 02:30 AM

Quote:

Originally Posted by YGOAMG (Post 14929955)
You don't have to actually be using it, just in possession..

So I wouldn't worry about the phone records ..


Take it to court.. What's a bit of time and money at the end of the day!!
Will be a good day out ..
At the end if the day that cop will have to say under oath that he saw you on the phone,
You'll have to say under oath that you wernt

Who's got the balls to lie??

+1

Will be a good day in court watching the pigs lose.

M3N7AL 11-27-2012 02:37 AM

Oh God....

In my opinion the phone records are very important. I don't know anyone who likes to drive around holding a phone to their ear talking to themselves.

The two most common reasons someone holds up a phone whilst driving is to text or make a phone call. So that could be part of your argument, and if your records show there were no texts or calls at around the time you were booked it will help your case mate. Get as much ammunition as you can. It's not hollywood, law and order or CSI.

If the police officer says he seen you "ON" the phone, then you show your records to prove that you weren't. Simple. His statement will be that he drove past and seen you had the phone to your ear.

Take photos of the phone/phone cover etc. Bring in receipts for your hands free etc.

Most importantly get the records as this will prove you had no reason to have a phone to your ear and the officer is simply mistaken, regardless of what uniform someone wears they are still as human as the average bloke down the street so they are not superhuman people who can't make a mistake. Weather, positioning, your window being up/down, pillars etc all play a part and he could have been mistaken.

And from reading this blokes info, he lives in Victoria not NSW.

Get the records, good luck mate.


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