No driving with earbuds connected to dead phone: judge

Using earbuds means ‘holding’ phone while driving, appeal rejected

A driver can be punished for using an electronic device - even if holding it means their ears are “holding” earbuds attached to a phone with a dead battery, B.C. Supreme Court has ruled.

Associate Chief Justice Heather Holmes accepted that conclusion as she rejected an appeal of a 2019 Richmond Provincial Court ruling. There, Patrick Henry Grzelak was convicted for using an electronic device while driving, a violation of B.C.’s Motor Vehicle Act.

Grzelak was alone in his car, driving home after a long day of work. His iPhone was in the centre cubbyhole in the dashboard, its battery was dead.

He said his earbuds were in after a long day of telephone conference calls, and he had developed a habit of leaving them in his ears for the drive home to help block out the highway’s drone. The earbuds’ wire was plugged into the iPhone.

The provincial court ruling concluded Grzelak was “using” the iPhone because he was “hold[ing] it in a position in which it may be used”, within the meaning of the definition of “use” in the legislation.

“Mr. Grzelak was holding the earbuds in his ears, and the earbuds were effectively part of the iPhone because they were connected to it by their wire,” Holmes wrote. “ It did not matter that the iPhone’s battery was dead, because the temporary inoperability of an iPhone does not remove it from the definition of “electronic device”, or from the (act’s) definition of “use.”

Homes said ‘holding’ is not restricted to what someone does with their hands. “I see no reason to conclude that a person with earbuds in their ears is not holding the earbuds with that part of their body,” Holmes wrote.

The decision said even though Grzelak could not use the dead phone, the position of the equipment “was held was suitable for the device’s use.”

“It did not matter that Mr. Grzelak’s iPhone could not distract him,” Holmes said.

In a December Burnaby case (https://bit.ly/34AHEwV), provincial court convicted a person for having a device mounted on his dashboard. The judicial justice found the man guilty on the grounds that driving with a device in plain sight constituted use of that device for the purposes of the act.

On appeal, however, B.C. Supreme Court Justice Jeanne Watchuk said simply having an electronic device mounted on a dashboard within a driver’s sight does not – in itself – constitute “use.”

jhainsworth@glaciermedia.ca

@jhainswo