10/11/2021 – A driver who proves that he has a mobile phone in his hand while driving is not penalized if this is not proven to him at the same time that he also used the mobile phone. This was decided by the Jena Higher Regional Court on October 13, 2021 (1 OLG 121 SsRs 55/21).
A driver ran into a speed camera on a highway. And because he was traveling so fast, he flashed. In the photo taken, not only the speed violation is documented. It was also seen that the man was holding a mobile phone in his right hand.
What is the meaning of the law?
The Jena District Court has sentenced the traffic offender not only for exceeding the speed limit. The driver also had to pay a fine for illegally using a cell phone while driving.
The court held that merely picking up a cell phone is an administrative offense within the meaning of it Section 23 (1a) of StVO Represent. Simultaneous use is not important.
Proving this is impossible without a corresponding confession by the accused. So this ruling would only make sense if the mere possession of an electronic device that is used for communication is also punishable as a criminal offence.
The accused must prove use
The Jena Higher Regional Court, which was dealt with in the second instance, did not want to join that. It considered the driver’s appeal well-founded and referred the case to the local court for a new decision.
In the Court of Appeal’s view, even after the new version of the law in October 2017, simply carrying or picking up an electronic device while driving a vehicle is not a punishable violation. Instead, device usage should be added.
Therefore the use must be proven to the accused. The Court of First Instance had to clarify whether such evidence was possible in the complainant’s case.
Numerous decisions on the subject
Several decisions on this topic are listed in the archives of the Insurance Journal.
Among other things, there is a decision of the Higher Regional Court in Hamm. As a result, the mere carrying of a mobile phone by a motorist while driving does not constitute a violation of the prohibition of use Section 23 (1a) of StVO Dar (VersicherungsJournal 7.2.2020).
