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Food for Thought

November 23, 2018 by in category News with 0 and 0
Home > News > News > Food for Thought

Last week it was National Fast Food Day, and this got us thinking. This day each year (and every other day for that matter) sees people order in or pick up their favourite fast food to celebrate this deliciously unhealthy date. However, there is a potentially expensive risk that is often overlooked by motorists who may innocently crave a treat from Maccy D’s from a “drive thru.”  If, like a significant number of people, you choose to pay for your burger or bargain bucket using a mobile phone app, such as apple pay or android auto, you could end up paying a lot more than the cost of your fast food treat!

Most people will be aware that it is against the law to use a mobile phone or other interactive communication device whilst driving a motor vehicle, otherwise known as the mobile phone offence. The penalty for this offence was increased to 6 points and a fixed penalty fine of £200 in 2017. Surely this does not apply to nipping down to the local KFC and gorging in some finger licking food? Well, maybe not but if cruising through the drive thru to collect your food, it might! When you hover your phone over the card machine at the drive thru window, whilst behind the wheel of your car, applying the strict letter of the law, this falls within the mobile phone offence criteria:

s.41D Road Traffic Act 1988
41D Breach of requirements as to control of vehicle, mobile telephones etc.

A person who contravenes or fails to comply with a construction and use requirement—

(a) as to not driving a motor vehicle in a position which does not give proper control or a full view of the road and traffic ahead, or not causing or permitting the driving of a motor vehicle by another person in such a position, or

(b) as to not driving or supervising the driving of a motor vehicle while using a hand-held mobile telephone or other hand-held interactive communication device, or not causing or permitting the driving of a motor vehicle by another person using such a telephone or other device, is guilty of an offence.

But I was not making a call?

Using a phone or device clearly means making or receiving calls or sending messages but you may not appreciate that it also extends to any other interactive communication function whether with another person or not. Using a payment app would almost certainly fit within this description although the particular use to which the mobile phone must be put is not defined as an element of the offence. If the phone was hand-held by the person at some point during its use at a time when the person was driving a vehicle on a road or other public place, then a court is likely to convict.

But I was not driving?

This doesn’t matter if your engine was on as the law includes cases when an engine is running and the vehicle is stationary. So if stopped at a traffic light or at the payment window of the drive thru then you could be prosecuted for a mobile phone offence.

And as ridiculous as it may seem, a person could be considered to be driving a stationary vehicle, even when the engine is not running – Jones v Prothero [1952] 1 All ER 434.

But surely it’s Common Sense?

Hmmm. Yes, that old chestnut! If spotted by a police officer in the process of paying at the drive thru one would hope that they would exercise a level of common sense and accept that your use of the phone should not see you attract points and a fine. Sadly, stranger things happen in the world of motoring law. Therefore, next time you have a hankering for a fast food delight you may be safer to stop at a cash machine on the way!

Munchies Warning!

And for those of you with a touch of the munchies after a night on the tiles, be warned! A significant number of our clients are apprehended by police for drug or alcohol tests when the conscientious drive thru staff tip off the police. So as tempting as those fast food treats may be, ask yourself if they are worth a 12 month ban for drink driving?

If you do find yourself needing our help, then please call our expert team of motoring lawyers who are happy to offer our expert motoring law advice.

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