Smartphone App Judged More Reliable Than Eye Witness in Distracted Driving Case
Please note that the lower court decisions in this matter were reversed by the BC Court of Appeal in June 2020. Please review the updated decision as this no longer is representative as the court state of the law.
In a July 16, 2018 court decision, Regina v. Patrick F. Tannhauser, a local Victoria man was able to prove his innocence, beating a distracted driving charge. He was successful, despite eyewitness testimonies of police officers, by using an application on his smartphone. While Mr. Tannhauser was seen holding his phone while driving, in a position that it could be used, he was able to prove that he could not have used his cell phone because software on his phone prohibited its’ use while driving.
Had he been found guilty, the fine for a single distracted driving violation ticket would have been $368, and 4 penalty points that will be applied a driver’s record, according to the Motor Vehicle Act. On a first infraction, these points would also result in a driver paying a further $175 ICBC Driver Penalty Point premium, for a total of $543 for a first infraction.
Mr. Tannhauser worked for Orkin, a pest control service, and driving was a necessity of his job.
On August 17th, 2017, Cst. Buerfeind and his colleagues were conducting a cell phone and seat belt compliance campaign. The routine was performed in View Royal, at a time when cars would be moving slowly, known as the “Colwood Crawl”. Cst. Buerfiend testified that he saw Mr. Tannhauser holding and handling his phone, though he could not see if the screen of the device was lit.
The law states that it is illegal to use an electronic device while driving a vehicle. Use is defined as “holding the device in a position in which it may be used”. Mr. Tannhauser, however, argued that because software on his phone prevents its use while driving, he could not have used his phone.
Despite police officers seeing him holding his phone, Justice H.W.Gordon decided that Mr. Tannhauser was innocent of the charge. This was due to the fact that Mr. Tannhauser had reason to believe his phone could not be used, and his story did not directly conflict with eyewitness testimony. His employer issued cell phone had an app disabling its’ use during driving.
Victoria Lawyer, Michael Butterfield, stated that “while this is an important case, each case is judged on its own merits”.
ICBC Pilot Project
ICBC is currently operating a pilot project, which could help reduce distracted driving owing to cell phone use. The technology involves a vehicle being fitted with a small device that activates an app installed on the driver’s cellphone. The technology disables the phone when the car is being driven. There are several settings on cell phones and cell phone apps that can be used to prevent distracted driving.
Justice H.W. Gordon noted in his decision “that suggests to me that ICBC is alive to the fact that if the potential for distraction is removed, so the device is not in a position in which it may be used, then it will not offended the section”.
This case sets an interesting precedent, not only because a man used an app on his smartphone to prove innocence, but because he did so against an officer’s eyewitness testimony. This brings about the question of, how far does this go now that the precedent is set? How far can the existence of a smartphone app go to prove your innocence?