A Vancouver Island man escaped a distracted driving ticket thanks to software on his phone that he claimed made it unusable in a moving vehicle.

Patrick Tannhauser was ticketed for using his phone while driving outside of Victoria in August 2017, court documents stated.

Police were watching for drivers using their phones during the afternoon commute and spotted Tannhauser holding the phone during the stop-and-go traffic. He was pulled over and issued a ticket.

But, Justice Hunter Gordon noted, the Victoria police officer who spotted him could not see if the phone's screen was lit up and it didn't appear to the officer that Tannhauser was using it.

B.C. courts have previously ruled that just holding your mobile phone while driving is in violation of the Motor Vehicle Act. (Burnaby RCMP)

Tannhauser testified that his employer installed software to prevent its use in a moving vehicle.

"The explanation he gave, that he was moving it from the passenger seat to the dash so he could access papers on the passenger seat, is not inconsistent with the evidence of the two officers," Gordon wrote in his decision.

"I believe Mr. Tannhauser when he says he reasonably believed the software disabled the functions of the cellphone."

Thanks to the software, Hunter ruled Tannhauser did not have to pay the ticket.

Apps an emerging tool

In his ruling, Gordon noted that apps are an emerging tool in the fight against distracted driving, which the province says is now responsible for more traffic fatalities than drunk driving.

Harvard Medical School researcher Dr. Regan Bergmark conducted a survey of 1,200 U.S. drivers in 2016 to find out how widespread these apps are and found only five per cent of respondents were using one.

"The key is to find a way to block needless phone/text message use in a manner that is not unbearably disruptive — attempts to stop all cell use are generally not going to be tolerated by consumers," Bergmark wrote in an email, adding more research is needed to find out how effective the apps are.

"I expect we will see rapid evolution of this space over the next several years."

ICBC announced last year it was testing software of its own that would lock phones in moving vehicles.

An ICBC spokesperson wrote in an email an announcement is expected in the fall about "strategy and next steps" for the software.

Decision could be first of its kind

Motorists who have tried to fight distracted driving tickets in the past have found it's no small feat.

One man expressed shock and frustration in 2017 when his ticket was upheld despite his claims he was simply plugging in the device.

Vancouver lawyer Paul Doroshenko said the Tannhauser decision is the first time he has ever heard of an app getting a driver out of a ticket.

A plain-clothes member of the Burnaby RCMP detachment works an intersection in March 2018, watching for drivers using their phones and radioing his partners around the corner to ticket offenders. (Rafferty Baker/CBC)

He said it illustrates how unsettled rules are when it comes to distracted driving because past cases have found simply handling a phone is enough to warrant a ticket.

"It goes against the prevailing decisions that are out there," Doroshenko said. "It's the court trying to sort out what it means."

But, Doroshenko adds, it's not guaranteed the decision will hold up on appeal.

He suspects the provincial government will be looking at this ruling with great interest.

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