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#Post#: 109108--------------------------------------------------
Use of mobile phone potentially leading to a totting up ban
& conflicting legal advice!
DIR By: Pikachu2025
Date: February 8, 2026, 1:21 pm
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Hello,
I'd appreciate some help. I've sought legal advice (one via a
free Motoring Legal Company, another via a paid solicitor) and
been given all sort of conflicting information. I have 6 points
on my license for speeding offences currently.
I received a NIP and admitted I was the driver, another 6points
would lead me to a totting up ban.
I was caught in queueing traffic by Cycling Mikey, who took a
video of me. I touched my phone but it is in my lap and never
hand held but the Cyclist commentary is stating that I was
holding it. He doesn't shy away from turning up to court.
One solicitor told me to accept the PCN & fine and then contest
not guilty if it goes to court as mitigating circumstances are
poor.I therefore did pay up but this will be rejected by the
DVLA I'm sure- will they write back to me or will it just go to
court?
Another solicitor told me they can write to the police and
request I get a "lesser" charge of not in proper control for 3
points. They said although they can see in the video that I'm
not holding it, it won't go down well in court and they will
find me guilty regardless.
I'd appreciate some help and advise on my situation- which
solicitor do I go with??
#Post#: 109111--------------------------------------------------
Re: Use of mobile phone potentially leading to a totting up ban
& conflicting legal advice!
DIR By: Southpaw82
Date: February 8, 2026, 1:43 pm
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Let’s just start with my personal view that Cycling Mikey is a
c***.
The obvious issue with the prosecution evidence at the moment
seems to be that you didn’t hold the phone in your hand, and
would presumably give evidence to that effect. CM might say that
you didn’t hold but his video doesn’t show that. That has the
makings of a defence (or rather, an issue for the prosecution in
proving an element of the offence).
The idea of pleading guilty to a lesser offence is a valid one
and may have legs if the prosecution can’t reliably get a
conviction for the mobile phone offence.
#Post#: 109114--------------------------------------------------
Re: Use of mobile phone potentially leading to a totting up ban
& conflicting legal advice!
DIR By: roythebus
Date: February 8, 2026, 2:36 pm
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You say :I therefore did pay up", surely that means you can't
plead not guilty in court. You've already dealt with the matter
as a 6 point FPN.
#Post#: 109115--------------------------------------------------
Re: Use of mobile phone potentially leading to a totting up ban
& conflicting legal advice!
DIR By: JustLoveCars
Date: February 8, 2026, 2:50 pm
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--- Quote from: roythebus link ---
>
> You say :I therefore did pay up", surely that means you can't
plead not guilty in court. You've already dealt with the matter
as a 6 point FPN.
>
--- End Quote ---
No as one of the conditions of accepting the CoFP (Not FPN) is
not reaching or exceeding 12 points.
Seems perverse, but there's nothing stopping the OP pleading not
guilty.
#Post#: 109116--------------------------------------------------
Re: Use of mobile phone potentially leading to a totting up ban
& conflicting legal advice!
DIR By: Pikachu2025
Date: February 8, 2026, 2:57 pm
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--- Quote from: roythebus link ---
>
> You say :I therefore did pay up", surely that means you can't
plead not guilty in court. You've already dealt with the matter
as a 6 point FPN.
>
--- End Quote ---
I will be given the choice of guilty or not guilty when served
notice to go to court, confirmed with the solicitor.
#Post#: 109121--------------------------------------------------
Re: Use of mobile phone potentially leading to a totting up ban
& conflicting legal advice!
DIR By: andy_foster
Date: February 8, 2026, 3:46 pm
---------------------------------------------------------
Either you or your solicitor(s) are full of sh*t - either what
they told you was, or your version is.
--- Quote ---
> One solicitor told me to accept the PCN & fine and then
contest not guilty if it goes to court as mitigating
circumstances are poor.I therefore did pay up but this will be
rejected by the DVLA I'm sure- will they write back to me or
will it just go to court?
--- End Quote ---
The fixed penalty is not a fine, but arguably that is just
semantics. The rest is utter twaddle. There is no PCN -
presumably you have received a COFP, as you claim to have
already paid it. As has been explained, you will be able to
plead not guilty as the condition of the COFP is not met, and
the penalty will be refunded and court proceedings will be
issued by way of Single Justice Procedure Notice. The concept of
pleading not guilty as mitigation is beyond absurd, but not so
far soi as to make out a defence of insanity. The DVLA have
about as much to do with this as accuracy has to your version of
events.
The notification to go to court will be after the Single Justice
has dealt with your plea.
Pragmatically, if the police/prosecution will drop the mobile
phone charge for a 3 point charge, that has a lot going for it
as you would avoid a totting up ban.
However, if they won't play ball, you are left with the choice
of :
- pleading guilty and getting 6 points and a 6 month totting ban
(unless you have a successful exceptional hardship argument),
but saving 1/3 on the fine (and therefore also on the 40%
surcharge on the fine) and facing prosecution costs of ~£90
rather than ~£620 if you lose a contested trial, or
- pleading not guilty and attempting to defend the charge. There
are essentially 4 elements to the offence - using (which does
not have to be interactive communication), holding (or
necessarily having held whilst driving and using), driving
(whilst holding and using) and a device capable of interactive
communication.
Were you (the vehicle) moving while using the phone? Personally,
I do not consider that using a phone whilst stationary in
queuing traffic constitutes driving for the purposes of the
mobile phone legislation. Others may disagree.
What were you using the phone for? Ironically, if it was for
interactive communication purposes, it could engage Article 10
ECHR - which would require any interference with the right to
express and receive ideas and information without interference
by public authority, unless such interference is provided for by
law and necessary to protect other people's rights (in this case
their safety). If the vehicle was stationary throughout, then I
would argue that it would be difficult to argue that it was
necessary to prohibit such actions to protect others from being
hit by a stationary vehicle. Again others may disagree. If the
vehicle was moving slowly then that would be an even harder
sell.
Did you hold the phone at any point whilst also using it and
driving? And perhaps more importantly, if you put the
prosecution to proof, could they prove that you did? I note that
you have told us that it was never hand held - but I call
bullsh*t on that, unless it was permanently attached to your
trousers when you bought it.
#Post#: 109122--------------------------------------------------
Re: Use of mobile phone potentially leading to a totting up ban
& conflicting legal advice!
DIR By: NewJudge
Date: February 8, 2026, 3:49 pm
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The offence is "using" a mobile phone. Why was it on your lap of
you were not using it? If you plead not guilty, the prosecutor
might ask you that question.
#Post#: 109127--------------------------------------------------
Re: Use of mobile phone potentially leading to a totting up ban
& conflicting legal advice!
DIR By: JustLoveCars
Date: February 8, 2026, 4:27 pm
---------------------------------------------------------
--- Quote from: andy_foster link ---
>
> Did you hold the phone at any point whilst also using it and
driving? And perhaps more importantly, if you put the
prosecution to proof, could they prove that you did?
>
--- End Quote ---
Cycling Mikey will have a video recording and, as noted, isn't
shy in attending court.
#Post#: 109128--------------------------------------------------
Re: Use of mobile phone potentially leading to a totting up ban
& conflicting legal advice!
DIR By: Southpaw82
Date: February 8, 2026, 4:43 pm
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--- Quote from: JustLoveCars link ---
>
> [quote author=andy_foster link=topic=9846.msg109121#msg109121
date=1770587219]
> Did you hold the phone at any point whilst also using it and
driving? And perhaps more importantly, if you put the
prosecution to proof, could they prove that you did?
>
--- End Quote ---
Cycling Mikey will have a video recording and, as noted, isn't
shy in attending court.
[/quote]
Have you read the thread, or did you just incontinently post?
#Post#: 109152--------------------------------------------------
Re: Use of mobile phone potentially leading to a totting up ban
& conflicting legal advice!
DIR By: The Slithy Tove
Date: February 9, 2026, 3:29 am
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--- Quote from: andy_foster link ---
>
> Were you (the vehicle) moving while using the phone?
Personally, I do not consider that using a phone whilst
stationary in queuing traffic constitutes driving for the
purposes of the mobile phone legislation. Others may disagree.
>
--- End Quote ---
"Others" would include most courts, would it not? Running that
as a defence would be a brave move (in the English, understated
use of the word "brave").
--- Quote from: andy_foster link ---
>
> What were you using the phone for? Ironically, if it was for
interactive communication purposes, it could engage Article 10
ECHR - which would require any interference with the right to
express and receive ideas and information without interference
by public authority, unless such interference is provided for by
law and necessary to protect other people's rights (in this case
their safety). If the vehicle was stationary throughout, then I
would argue that it would be difficult to argue that it was
necessary to prohibit such actions to protect others from being
hit by a stationary vehicle. Again others may disagree. If the
vehicle was moving slowly then that would be an even harder
sell.
>
--- End Quote ---
Trying to use that one would be even more "brave". And likely
expensive. Mind you, a successful use of such a defence would
probably have all the Farage-ites suddenly not wanting to scrap
the Human Rights Act after all.
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