A B.C. Supreme Court Justice ruled in favour of a Prince George woman who appealed a conviction for distracted driving on the basis that she was using a two-way radio, the Prince George Citizen reported.
In a decision issued last week, Justice Terence Shultes agreed with Tania Louisa Shelford that the devices are allowed for use by industry while driving.
Shelford is a company driver whose vehicle is equipped with a two-way mobile radio that allows her to contact her dispatcher, according to the DriveSmartBC website.
She was using that radio to acknowledge the end of her shift in July 2019 when an RCMP officer noticed her looking down at what appeared to be a phone in the center console area and issued her a ticket. She disputed the ticket, but a lower court justice found she was in the wrong.
From there, she took the matter to the B.C. Supreme Court where, during a trial in November 2020, she provided a circular from the Superintendent of Motor Vehicles that shows two-way radios as a permitted use.
In upholding the fine, the lower court justice made the determination on the basis that the microphone was not securely fixed to the vehicle. However, Schultes found that in doing so, the lower court justice overlooked a requirement in the regulation governing the use of electronic devices while driving that states hand microphones must be “both receiver and microphone.”
Hand unit is just the microphone
“In the case of mounted two-way radios, the hand unit is just the microphone for the user and the receiver is the mounted radio unit to which (it) is connected,” Schultes says in the decision. “Despite the fact that this microphone could be removed from its holder Ms. Shelford explained in cross-examination that ‘[t]he radio [that is, the part that functions to receive and broadcast signals] was permanently attached.’”
As such, Schultes found the regulation agrees with Shelford’s interpretation of the circular.
During the trial before Schultes, Shelford testified that when she uses the radio’s microphone, she holds it low and may have glanced at it while passing the RCMP officer. Shelford also told the court she had used that van for two years and “instinctively” knew where the microphone was located.
Of interest to amateur (ham) radio users and others who use portable (hand-held) radios, these devices do fall under the definition of hand microphone and may only be used while driving if they are securely attached to the driver’s person or vehicle in a position that is convenient to use. In addition, only the push and hold to talk function may be used and operation of any other control for the radio while driving is prohibited.