Scales of Justice

Wearing earbud connected to dead cell phone still distracted driving, judge confirms

Surrey driver loses appeal of conviction as judge upholds decision that driving with a dead cellphone is still distracted driving

Looks like Patrick Henry Grzelak will remain guilty as charged of using an electronic device while driving in Surrey despite his claim that the cellphone battery was dead and the only thing connecting him to his phone, by way of his earbuds, was a wire.

B.C. Supreme Court Associate Chief Justice Heather Holmes in Vancouver has upheld a lower court decision in which Grzelak was found guilty under the B.C. Motor Vehicle Act because the wire from his earbuds was plugged into his iPhone.

The court heard Grzelak was driving home after a “long day of work” and had his phone in the centre cubbyhole of his dashboard. He had explained at trial that although the battery was dead, after a long day of telephone conference calls, he habitually left them in his ears for his drive home in an effort to muffle the noise from traffic.

The judicial justice who presided over the case in provincial court concluded that he was “using” his phone.

“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 noted in her Oct. 6 reasons for judgment.

READ ALSO ZYTARUK: Pondering the cosmic interconnectedness of things

READ ALSO: B.C. driver found guilty of using cellphone despite dead battery

Grzelak appeal of the lower court’s decision was not successful. Holmes concluded the judge had not erred in his decision to convict, finding that “‘holding’ is not restricted to an action a person 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 concluded.



tom.zytaruk@surreynowleader.com

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