RICHMOND, B.C. — A B.C. driver has been found guilty of using a cellphone while behind the wheel, even though its battery was dead.
The decision, delivered Monday by judicial justice Brent Adair in Richmond, says Patrick Grzelak was using his iPhone with earbuds in his ears.
The ruling says Grzelak was alone in his Mercedes on Oct. 12, 2018, heading home after a long day, with the dead iPhone in the centre cubby hole of his dashboard, when he was pulled over in Surrey.
Adair found Grzelak was using the device because it was "in a position in which it may be used," as defined under the Motor Vehicle Act.
Adair ruled it didn't matter that the battery was dead or that Grzelak was not using the phone.
With the earbuds in, Adair ruled Grzelak was essentially holding the device.
"Since the earbuds were part of the electronic device and since the earbuds were in the defendants 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," Adair wrote.
Adair pointed to a previous provincial court ruling that reached a similar conclusion in 2015.
In that decision, Adair says another judge ruled a dead battery does not override wording in the Motor Vehicle Act that makes it an offence to simply hold an electronic device in a position in which it may be used.
Conviction on a charge of using an electronic device while driving carries a $368 fine, plus four penalty points, as well as an Insurance Corporation of B.C. penalty fee of $210.