The cell phone is held between the shoulders and the head: gripe inappropriately?

Contribution from Michael Bowler, Traffic Lawyer and Attorney, Constance

In a ruling of December 4, 2020, the Supreme Regional Court of Cologne clarified Az. III.1 RBs 347/20 that it is not necessary to carry a mobile phone manually in order to commit the offense of Section 23 Paragraph. 1A, 49 Paragraph 1 No 22 StVO completed and fine and 1 point in the fitness record for driving.

Gripping does not require “holding hands”

The court says:

“Contrary to the legal opinion expressed by the Public Prosecution Office, it is not enough of course that the person concerned has picked up his mobile phone at some point. Such as not only the wording. § 23 Abs. 1a S. 1 Ziff. 1 stvo (“Whoever drives …”), but also regulation § 23 Abs. 1b S. 1 Ziff. 1 stvo It proves, registering the electronic device while the vehicle is turned off is not sufficient to achieve the facts (see Senate DAR 2019, 398; see the facts on which the OLG Stuttgart DAR 2019 decision is based, 103 = VRS 135, 38 based on further Urbanzyk DAR 2018, 641 and – in previous version – Janker NZV 2006, 69 [70]). From the context of the reasons for the judgment, it can be inferred that the court of first instance has accepted the acceptance of the persons concerned that the mobile phone has been fixed between the ear and the shoulder in the manner shown in the image of the measurement “before the start of a journey” in this sense, and that it (at least) cannot be refuted, but is considered not relevant Link for legal reasons. The Senate joins this statutory assessment.

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(B b) (1) is covered in the beginning by drafting the provision. It’s literally possible to ‘carry’ things without using your hands. So one would talk about ‘holding onto’ – other than the topic concerned here – when an object is installed between the upper arm and the torso or between the thighs (in this direction also AG Coesfeld DAR 2018, 640; König DAR 2020, 362 [372]).

(2) In any case, the purpose of the judgment does not exclude the corresponding presumption. It may also act primarily to prevent behaviors that result in the driver not having his hands available to steer the vehicle and / or having to avoid his gaze from traffic conditions (OLG Karlsruhe DAR 2020, 520; OLG Hamm DAR 2019, 632; Burmann / Heß / Hühnermann / Jahnke -Heß, Road Traffic Law, 26th edition 2020, § 23 StVO Margin does not. 22 a; On the previous version with reference to the explanation of the decree at the time Hermann, NStZ-RR 2011, 65 [67]), This generally consists in preventing activities not related to driving a vehicle which have a detrimental effect on the need to focus on traffic (OLG Hamm B. v. 3 November 2020 – 4 RBs 345/20 – in joris; Henschel / Koenig / The Permanent King, Road Traffic Act 45th edition 2019, § 23 StVO Margin does not. 14, 30). The regulator gave the use of electronic devices with the hands an increased distraction effect; However, it has also been taken into account that non-driving activities, regardless of this, lead to distractions that endanger road safety (BR-Drs. 556/17 p. 12). (Only) for reasons of proportionality and due to the associated difficulties in providing evidence, he refrained from banning the use of electronic devices as a whole (loc. Cit. P. 17), but considered this alternative. This view speaks in favor of viewing non-driving activities as prohibited, insofar as the wording of the regulation permits a maximum of interpretation – as is the case here -.

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There is no doubt that using a mobile phone in the manner described here is a non-driving activity. It also contains – as the district court has already correctly pointed out in this matter – a significant potential risk. It is not primarily about the complexity of activities that involve a change in position, such as looking over the shoulder or looking in a mirror. In addition to the telephone conversation in this manner, the extremely insecure and therefore irresponsible holding of the mobile phone between the ear and the shoulder itself unduly requires the driver’s attention. There is a risk that the mobile phone will detach from its “carrier” and then prompt the driver to act involuntarily to prevent it from being found – for example – in the foot of a car. In order to face this danger, the driver would devote part of his attention to his mobile phone, which would otherwise be directed towards the traffic situation. This circumstance distinguishes the use of the mobile phone under discussion here from the use of a hands-free device, in which the driver does not regularly have to worry about the stability of the holder. This difference supports the assessment of the use in question here as prohibited compared to the use permitted by a hands-free device. “

Successful defense is still possible

If it is not possible to “extinguish” witnesses (usually police officers who want to monitor cell phone abuse) by interrogating and stopping proceedings, the defense of this crime is usually in the case of mitigation of the consequences aiming, in particular, to reduce the fine to less than 60.00 Euros, thus preventing entry of points.

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