For being illegal, distracted driving is one traffic offence that’s still shrouded in a bit of mystery.
We’re well aware that police use radar guns to determine if — and by how much — someone's speeding. We know red light cameras catch those drivers who dangerously decide to blow through them. And we know how breathalyzers are used to confirm if someone is driving under the influence of alcohol.
But what about distracted driving?
This is a charge much less dependent on physical tools and much more dependent on physical observation. How do police actually detect a distracted driver? And if said driver wants to dispute the charge, how can the police prove what they say they saw?
Cues that you’re distracted
When police are on duty, they’re looking for three distracted-related offences under Ontario’s Highway Traffic Act:
1. Display screen visible to the driver (e.g. YouTube playing a video; GPS is allowed as long as you’re not interacting with it while driving)
2. Handheld use of communication devices (e.g. holding your cell phone up to your ear)
3. Handheld use of entertainment devices (e.g. using a portable DVD player)
“The one where we’re getting pretty much all the numbers on is the handheld communication device offence,” says Sgt. Jason Kraft of the Toronto Police Service (TPS). “That's the person that has their phone in their hand while they're in care and control of their vehicle.”
Often a distracted driver looks just like a fatigued driver or even an impaired driver
In 2018, Toronto police officers issued 10,866 distracted driving tickets (including warnings and court summons) across the city. So far this year, as of Nov. 15, it’s issued 9,150.
But in order to issue these tickets, what do police have to see? What behaviours are they looking for in order to spot distracted driving?
Sgt. Kraft says the TPS is watching for things like delayed starts from stops. “Or if they’re weaving back and forth between the marked lines. Sometimes they're drifting from left to right still within the lane.”
“Often a distracted driver looks just like a fatigued driver or even an impaired driver,” adds OPP officer Sgt. Kerry Schmidt. “They're weaving in their lanes. They're up and down in their speeds. Very often you'll see them in rush hour traffic holding back and keeping well in excess of a typical following distance. They know they need to have that distance to compensate for their inability to react timely.
“You can often see their head bob, looking to their crotch. It's obvious what they're doing.”
Proving an allegation of distraction
But beyond just using their eyes to spot distracted drivers, police might also rely on marked and unmarked vehicles that are equipped with cameras to prove that a driver was driving distracted.
“We’ve experimented with those in the past,” says Sgt. Schmidt, “just to kind of document the evidence and the scenes of what is happening. And that certainly does help, but it's not the mainstay. For us, the primary type of enforcement is visual observations.”
According to Sgt. Kraft, if you’re pulled over and given an offence notice for distracted driving, you have 15 calendar days to either plead guilty and pay the fine, plead guilty and provide an explanation, or plead not guilty and contest the ticket in court, usually in front of a justice of the peace. Once a trial date is set, both you and the police officer who pulled you over will have the opportunity to present your respective evidence.
And while the police officer’s evidence could include photo and/or video proof that you were using your cell phone while driving, “It could be just as good as the evidence that I provide in court based on my recollection of the events,” says Sgt. Kraft.
In other words, it might just be your word against the officer’s word.
Now, in instances where the distracted driving was a factor in causing a collision, and a collision investigation needs to be done, Sgt. Schmidt says that the police could obtain a search warrant and/or production order for your phone to determine if you were using it at the time of the collision. Police have relied on dash cams to prove allegations of distracted driving and they can also use handheld devices to snap a photo of a driver who’s using his or her cell phone while driving.
“There are officers — we refer to them as neighbourhood or connected officers — who have handheld devices that are issued to them from the organization, and they could use those devices to capture pictures that would make up part of their evidence,” says Sgt. Kraft.
For us, the primary type of enforcement is visual observations
“There are exceptions in the Highway Traffic Act that allow police officers to use handheld communication devices while operating a vehicle. If it’s in the lawful execution of our duty, then we have that exemption.”
If you happen to witness someone driving distracted, you could be of help, too. According to Sgt. Schmidt, drivers can report distracted driving either by calling in to the OPP or by reporting online. You can provide the distracted driver’s licence plate number for the OPP, who may then go about trying to track down the driver.
"We might send the driver a warning letter,” says Sgt. Schmidt. “If we're in the area we can make our own observation but we definitely won't lay a charge based on someone else's complaint because we'd need to validate it as well.”
Detection in rural versus urban areas
Urban police officers might actually have an advantage over rural officers when it comes to enforcing distracted driving. City streets are typically more congested, vehicles are moving at slower speeds, and there are more traffic lights for drivers to stop at, giving police a helpful vantage point to spot those who are distracted by their phones.
“Certainly it’s a benefit,” says Sgt. Kraft. “It’s more likely that we're going to be able to observe motorists distracted driving at these lower speeds and at these urban intersections where we can observe them.”
In rural areas, where vehicles are moving at higher speeds along highways, however, it could prove to be a little trickier.
“Getting up beside these vehicles may be difficult if it’s just a two-lane road,” says Sgt. Schmidt. “You may only see them at intersections and stop signs in the community when there’s a turning lane.”
In 2018, the OPP issued 13,268 distracted driving tickets. Data from the OPP shows that distracted driving offences in Ontario are actually on a downward trend. So far this year (up to and including the month of October), the OPP has issued 7,406 distracted driving tickets. When looking at year-over-year numbers (from October 2018 to October 2019), there’s been a 58% decrease in the number of distracted driving tickets issued.
No matter where police are patrolling for and enforcing distracted driving, it won’t be effective if the public isn’t educated on the dangers and consequences of this offence.
“We can't ticket our way to compliance,” says Sgt. Schmidt. “There will always be people who aren't obeying the rules of the road and we certainly need people to understand the consequences. But I think there's more value in that than there is in ticketing a bunch of drivers. Because everyone agrees with the message; they just don't think it's them who are the problem.”