His phone’s battery was dead and the device was stored in a cubby hole in the dashboard, but a BC man has still been found guilty of distracted driving, a judge ruled this week.

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In his decision, Justice Brent Adair noted that despite the phone’s dead battery, the man, Patrick Henry Grzelak, still had earbuds in both his ears, connected to the dead phone, while he was driving in Surrey on October 12, 2018.

The issue, Adair wrote, “is whether the defendant was ‘using’ the cell phone as that term is defined in Section 214.1 of the Motor Vehicle Act.”

He noted that here, the word “use” in relation to an electronic device, means one or more of the following actions:

Holding the device in a position in which it may be used;

Operating one or more of the device’s functions;

Communicating orally by means of the device with another person or another device;

Taking another action that is set out in the regulations by means of, with or in relation to an electronic device.

The decision, he continued, came down to whether or not Grzelak was “holding the device in a position in which it may be used? If so, a conviction must follow.”

Adair recognized that the cell phone itself was sitting in the centre cubby hole, and was not in the defendants hands, or in his lap.

“But that is not the end of the matter,” he wrote. “In my view, by plugging the earbud wire into the iPhone, the defendant had enlarged the device, such that it included not only the iPhone (proper) but also attached speaker or earbuds.”

And because the earbuds were part of the electronic device and since the ear buds were in the defendants ears, “it necessarily follows that the defendant was holding the device (or part of the device) in a position in which it could be used, i.e. his ears.”