Disputing a driving without due care ticket

[Eff-1]

Originally Posted by zulutango

I would think having an unoccupied vehicle moving with no one controlling it could hardly be considered being operated in an authorized manner..

But nobody's operating it. There's no unauthorized use. In fact, there's no use at all. The car is rolling on its own.

Originally Posted by zulutango

Cars that are properly locked or secured do not drive off on their own.

Completely agree. But if I was the OP and you charged me with 191, and I felt like trying to weasel out of it, I'd argue based on the fact the wording of this section doesn't apply to this situation. I believe 191 was written to address not leaving your car unsecured so that other PERSONS could use it without permission.

Look at 191(1) it says:

191 (1) A motor vehicle must be equipped with a lock or other device to prevent the unauthorized use of the motor vehicle.

Clearly the intent there was to secure the car from being stolen. The same logic should then apply to the 191(2) given they use the exact same wording.

Couldn't you use instead 195(1)a

195 (1) A person must not cause a vehicle to move on a highway if

(a) the control of the driver over the driving mechanism of the vehicle, or
(b) the view of the driver to the front or sides of the vehicle
is obstructed.

[underscore]

I find it a bit odd that the MVA doesn't have a section covering a parked vehicle moving on its own, for whatever reason.

[zulutango]

Originally Posted by underscore

I find it a bit odd that the MVA doesn't have a section covering a parked vehicle moving on its own, for whatever reason.

It does...section 191, as above. The vehicle is required to be secured.

se·cure
səˈkyo͝or/
verb
past tense: secured; past participle: secured
fix or attach (something) firmly so that it cannot be moved or lost.
"pins secure the handle to the main body"
synonyms: fix, attach, fasten, affix, connect, couple More
make (a door or container) hard to open; fasten or lock.
"doors are likely to be well secured at night"
synonyms: fasten, close, shut, lock, bolt, chain, seal
"the doors had not been properly secured"

[zulutango]

Originally Posted by Eff-1

But nobody's operating it. There's no unauthorized use. In fact, there's no use at all. The car is rolling on its own.



Completely agree. But if I was the OP and you charged me with 191, and I felt like trying to weasel out of it, I'd argue based on the fact the wording of this section doesn't apply to this situation. I believe 191 was written to address not leaving your car unsecured so that other PERSONS could use it without permission.

Look at 191(1) it says:

191 (1) A motor vehicle must be equipped with a lock or other device to prevent the unauthorized use of the motor vehicle.

Clearly the intent there was to secure the car from being stolen. The same logic should then apply to the 191(2) given they use the exact same wording.

Couldn't you use instead 191(1)a

195 (1) A person must not cause a vehicle to move on a highway if

(a) the control of the driver over the driving mechanism of the vehicle, or
(b) the view of the driver to the front or sides of the vehicle
is obstructed.

That section deals with people who drive with dogs on their laps, dream catchers hanging from the mirror, peep holes scraped into frosted over windows or junk inside that blocks their view out of the windows. That sort of thing.

[underscore]

Originally Posted by zulutango

It does...section 191, as above. The vehicle is required to be secured.

se·cure
səˈkyo͝or/
verb
past tense: secured; past participle: secured
fix or attach (something) firmly so that it cannot be moved or lost.
"pins secure the handle to the main body"
synonyms: fix, attach, fasten, affix, connect, couple More
make (a door or container) hard to open; fasten or lock.
"doors are likely to be well secured at night"
synonyms: fasten, close, shut, lock, bolt, chain, seal
"the doors had not been properly secured"

191 doesn't use the word secure at all

191 (1) A motor vehicle must be equipped with a lock or other device to prevent the unauthorized use of the motor vehicle.

If "unauthorized use" in 191 can be interpreted to mean the car moving on it's own (which kinda makes the car sound sentient, damn it KITT) then 195.1b should be able to be taken literally because the OP's view of the car was obstructed by a wall.

Does the MVA not have a section where they define what things like "unauthorized use" actually mean?

[BoostedBB6]

You can dispute the charges for sure but frankly I don't think you will win.

At the end of it all, you had an illegal device equipped to your vehicle (remote start on a manual car without a neutral lock out), you used the remote start to start your car and your car ended up involved in an accident. The car did nothing without you being the one controlling its actions.

I don't see it going well in court as the car did nothing without you commanding it to do so and even if you did not command the car to do something its your responsibility to insure that your car is in safe, working order and that it can not be operated without you directly controlling it.

If anything, I would take it to court and ask for leniency with regards to the point and express your concerns why and perhaps they will be able to reduce fine/points for you.

I had a similar incident with a car I had. Parked in a driveway, e-brake on. Left the car. Cable snapped, car rolled back into a shed. Sadly it was my fault that my car was not maintained properly to prevent that from happening. Fortunately, the guy tried to hose ICBC for it as the shed was not to code and was not in fact supposed to be there. ICBC told them that they would not be paying anything to him and that my vehicle would not be covered....I did not care about the car, very minor damaged (dime sized dent).

[Soundy]

So zulu, would it be possible for OP to ask the JJP to reduce the charge to 191(2)?

From everything he's said, it sounds like the cop was being particularly pissy about looking for ways to smack OP down as hard as possible... OP sounds reasonable and is willing to "take his medicine", but it's almost like the cop was trying to jam a bottle of Buckley's down OP's throat when Neo-Citran would suffice...

The only person who can change the charge is the person who laid it...the JP can agree to change the section in court before the testimony actually begins if the officer proposes the change and the disputant who is present also tells the Jp that he agrees with the changed section. As far as having a conversation with the issuing Member goes, nothing to prevent you calling and asking...but just because you don't want the penalty would not be a reason for me to drop the ticket. Have a chat with your lawyer and follow their advice. You can provide them with complete details rather than a BB post.

[Soundy]

Originally Posted by BoostedBB6

I had a similar incident with a car I had. Parked in a driveway, e-brake on. Left the car. Cable snapped, car rolled back into a shed. Sadly it was my fault that my car was not maintained properly to prevent that from happening. Fortunately, the guy tried to hose ICBC for it as the shed was not to code and was not in fact supposed to be there. ICBC told them that they would not be paying anything to him and that my vehicle would not be covered....I did not care about the car, very minor damaged (dime sized dent).

Self-ownage FTW

[Jgresch]

Hi all, sorry for neglecting this thread. I'm kind of wondering the same thing as Soundy, and am I able to just call the officer and tell him what I'm afraid of here (losing my license) then asking for a change of fine/charge? Or do I need to wait until my court date then talk to him just before the session?

I have some more time this week that I can actually do some reading and give the lawyers a call for more advice.

Thanks again for all the input!

[zulutango]

The only person who can change the charge is the person who laid it...the JP can agree to change the section in court before the testimony actually begins if the officer proposes the change and the disputant who is present also tells the Jp that he agrees with the changed section. As far as having a conversation with the issuing Member goes, nothing to prevent you calling and asking...but just because you don't want the penalty would not be a reason for me to drop the ticket. Have a chat with your lawyer and follow their advice. You can provide them with complete details rather than a BB post.

[Soundy]

Clicked the wrong button the first time, ZT?

[Spidey]

Originally Posted by underscore

For starters, I'm pretty sure by using a remote start you become "in care and control" of the vehicle once you hit that button. Second, just removing the remote doesn't disable the system, you need to remove the fuse or disconnect the remote start wiring. Not so relevant when parking outside, but if the car is ever parked in a garage the remote start needs to be fully disabled on the cars end to prevent a carbon monoxide issue. Third, this is more an an FYI, the remote start won't disable the steering lock, you still need the key for that, so it could only go forward (ish, depends on the wheel orientation), not pull a u turn.

IMO "fleeing an accident" and "driving without due care" aren't really applicable charges, since as you said the accident didn't involve another car, I'd think whatever charges would be applied to a car rolling down a hill or something would be more appropriate, I think you're in violation of MVA 191.2b (turning the wheels on a grade) and maybes 195.1 (vehicle moving on a highway with an obstructed view)? for that.

Actually, section 68 (3) Fail to stop when in accident resulting in damage to property

So let me get this straight, OP... your car drove on it's own because it was in first gear..... shouldn't it stall, or is it because it was cold, the idle was high so it didn't stall? Sorry didn't read through the posts thoroughly so I may have missed that part.

I know you already posted that you usually leave your car in neutral.. but why not have it a habit for using your e brake? I had an auto starter on my old car which was manual and I always use the e brake... I still use it now.. I rely on it more than leaving it in gear unless I am on a steep grade, but I digress.

[Jgresch]

Originally Posted by Spidey

Actually, section 68 (3) Fail to stop when in accident resulting in damage to property

So let me get this straight, OP... your car drove on it's own because it was in first gear..... shouldn't it stall, or is it because it was cold, the idle was high so it didn't stall? Sorry didn't read through the posts thoroughly so I may have missed that part.

I know you already posted that you usually leave your car in neutral.. but why not have it a habit for using your e brake? I had an auto starter on my old car which was manual and I always use the e brake... I still use it now.. I rely on it more than leaving it in gear unless I am on a steep grade, but I digress.

Was outlined in my post, but too long to read so I understand. E brake was on, and was on again when the officer and I tested in parking lot. Car should have stalled, but yea rpm probably at 1500, bucked forward enough to get going. E brake obviously wasnt pulled hard enough or cable starting to get old/loose.

[sebberry]

Originally Posted by zulutango

I don't know how crown could prove you were driving a parked, unoccupied vehicle?

Perhaps the same way they can levy a drunk-driving charge on an intoxicated individual for walking up to his car to get something out of it...

[underscore]

Originally Posted by Spidey

Actually, section 68 (3) Fail to stop when in accident resulting in damage to property

So let me get this straight, OP... your car drove on it's own because it was in first gear..... shouldn't it stall, or is it because it was cold, the idle was high so it didn't stall? Sorry didn't read through the posts thoroughly so I may have missed that part.

I know you already posted that you usually leave your car in neutral.. but why not have it a habit for using your e brake? I had an auto starter on my old car which was manual and I always use the e brake... I still use it now.. I rely on it more than leaving it in gear unless I am on a steep grade, but I digress.

Even with the ebrake engaged the higher idle on cold start can be enough to either overpower the brake or drag the cold rear tires. As an example my Prelude can drive itself along in 2nd gear when it's in cold start mode, so first with a bit of added resistance would be easy.

[sebberry]

The starter motor has a ton of torque, hence why there's a clutch interlock switch that prevents starting unless the clutch is in.

The starter can easily move the car.

[underscore]

The starter shouldn't be engaged long enough to move the car a significant distance though.

[BoostedBB6]

Originally Posted by underscore

The starter shouldn't be engaged long enough to move the car a significant distance though.

That depends on how the remote start works. I have seen some that need to see a constant engine speed reading before disengaging. Also, if it was able to move the car enough to bump start it and disengage then it would drive on its own and the remote start would simply think the car is just running.

[underscore]

^ good point, that kind of thing is going to be model to model.

[BoostedBB6]

Originally Posted by underscore

^ good point, that kind of thing is going to be model to model.

Exactly. This is why installers will almost always refuse to install remote start on manual transmission cars. I have done them in my own vehicles before but they often require a sequence to be followed before they will work.
For instance you need to part, put the e-brake on, and clutch out. Then turn the key off and remove it. If you press the clutch in, take the e-brake off or touch the brake it will disable and wont remote start.
If you are trying, you could get it to start in gear even like this but it would need the be intentional.

I think in a case like this you should be able to explain the situation to the judge and police officer and I do not see why they would not lessen or get rid of the fine.

[zulutango]

Originally Posted by sebberry

Perhaps the same way they can levy a drunk-driving charge on an intoxicated individual for walking up to his car to get something out of it...

That is too wide a statement to apply here. To get a conviction for that type of circumstance would be very difficult. The fact the driver was impaired, had the keys and was entering the vehicle would mean he could be considered to have care and control of it. An unattended vehicle with the driver nowhere in sight and sober is not the same thing.

[sebberry]

Originally Posted by zulutango

That is too wide a statement to apply here. To get a conviction for that type of circumstance would be very difficult. The fact the driver was impaired, had the keys and was entering the vehicle would mean he could be considered to have care and control of it. An unattended vehicle with the driver nowhere in sight and sober is not the same thing.

The OP had the remote control. It was absolutely under his care and control.

As our mobile device laws have made clear, you don't have to be operating a moving vehicle to be considered "driving".

-OP had the remote that made the car move forward (Care and control)
-You can get an impaired driving charge for simply walking to your car but not driving it
-You can get a distracted driving ticket for simply moving your phone (not using it) while stopped at a light (not actively driving)

I can easily see how the OP would be issued the ticket he was issued.

If the charge of driving without due care was not reasonable here, then the police should stop issuing tickets for distracted and drunk driving for the scenarios I just listed.

[Spidey]

Originally Posted by sebberry

The OP had the remote control. It was absolutely under his care and control.

As our mobile device laws have made clear, you don't have to be operating a moving vehicle to be considered "driving".

-OP had the remote that made the car move forward (Care and control)
-You can get an impaired driving charge for simply walking to your car but not driving it
-You can get a distracted driving ticket for simply moving your phone (not using it) while stopped at a light (not actively driving)

I can easily see how the OP would be issued the ticket he was issued.

If the charge of driving without due care was not reasonable here, then the police should stop issuing tickets for distracted and drunk driving for the scenarios I just listed.

-OP had the remote that made the car move forward (Care and control)

Having a remote starter is different than having a remote that just unlocks/locks a vehicle.

-You can get an impaired driving charge for simply walking to your car but not driving it

For care and control, you have to meet certain elements. Walking up to your car is not, and would never get charge approval from Crown.


-You can get a distracted driving ticket for simply moving your phone (not using it) while stopped at a light (not actively driving)

that is because there is a specific law stating you cannot even hold your phone in your hand. I am sure you have seen this http://www.pssg.gov.bc.ca/osmv/share...le-driving.pdf

[meme405]

Originally Posted by Spidey

that is because there is a specific law stating you cannot even hold your phone in your hand. I am sure you have seen this http://www.pssg.gov.bc.ca/osmv/share...le-driving.pdf

Woah hold on I had never seen that.

A little off topic, but point 3 on that list, says you can't even look at the screen?

Does that mean that having the navigation on your phone active while in a holster on the dash is illegal? I could have set the navigation long before I ever actually started my car, but I can't even look at the screen?

EDIT: Never mind, my stupid pdf reader wouldn't scroll down to show the other pages until i zoomed out a bit.

Such a complex set of rules and exceptions...

[ancient_510]

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