Question I am thinking of fighting a fixed penalty notice for driving while using a mobile phone. I was sitting in traffic when I started to experience an asthma attack. I had forgotten to take my inhaler with me and I phoned my wife to ask her to get it to my office, where we would probably arrive at the same time. I was only on the phone for less than a minute and I think that I am being treated harshly in the circumstances.

Answer This does seem harsh, but there is just a possibility that you could defend this. If you were using a hands-free system without handling the phone itself then you would not be guilty of the offence, but I assume this was not the case, as it is unlikely that you would be facing a fixed penalty notice. This appears to have been a genuine emergency (the regulations use the term “genuine”, to distinguish it from something the driver might think an emergency but, objectively, might not be regarded as such). However, to defend the proceedings on this basis you would have to satisfy the court not only that it was unsafe or impracticable for you to cease driving to make the call, but also that you were calling the police, fire or emergency service on 112 or 999. You might have been able to satisfy the court on the first of these requirements, but unfortunately not on the second. Even if you had been phoning your GP you would not have escaped, because that would not have required a 999 or 112 call. The issue that might give you a chance of a defence is the question of whether or not you can be said to have been “driving”. There have been lots of cases before the courts where the court has had to rule on whether or not someone has been driving – cases involving people pushing a car, coasting without switching on the engine and releasing the handbrake to roll forward a few yards have all been the subject of judicial consideration and most have gone against the driver.

The main principles that a court would consider are:

• It is a question of fact in each case, depending on the degree and extent to which a person has control of the direction and movement of the vehicle;

• One test is whether the accused person was “in a substantial sense controlling the movement and direction of the car”;

• Even if a person has had this control of the vehicle, the court still has to consider whether the activity would be considered to be driving in the ordinary sense;

• Whether the accused person deliberately set the vehicle in motion is an important factor;

• In borderline cases the court should consider the length of time the steering wheel or other control was handled.

How is all this relevant to you? Well, you say you were sitting in traffic, which may mean that the car was stationary for the whole duration of the phone call. If this is the case there is scope for the court to conclude that this was not therefore “driving”, by applying the above tests, particularly because at that moment you were not controlling the direction or movement of the car, it was not moving!

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