Drivers wearing earbuds even if cellphone is dead still considered distracted driving: B.C. Supreme Court

The B.C. Supreme Court has upheld a ruling that says wearing earbuds in both ears while driving — even if they're connected to a dead iPhone — constitutes distracted driving.

Justice Heather Holmes said a provincial court judge did not make an error when ruling last year that earbuds plugged into a cellphone by their wire become part of the electronic device.

The decision, released Tuesday, stemmed from an appeal launched by Patrick Grzelak, a driver in Surrey, B.C., who was caught wearing in-ear headphones in 2018 and was found guilty of distracted driving.

Grzelak was driving home from a long day of work on Oct. 12, 2018, when police officers spotted him in the northbound lanes of 152 Street.

His iPhone was in the centre cubbyhole of the dashboard, with his wired earphones plugged in. The phone's battery was dead. 

Grzelak said he had earbuds in his ears because he had been using them during a long day of telephone conference calls. He said he developed a habit of leaving them in his ears for the drive home to block out highway noise.

Drivers can only wear one earbud when driving, according to the B.C. Motor Vehicle Act.

The phone wasn't in the driver's hands or lap. It wasn't illuminated or playing music, or being used to make calls or navigate.

But in 2019, judicial Justice Brent Adair found Grzelak was "legally" using the phone.

"Since the earbuds were part of the electronic device and since the earbuds were in the defendant's 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," he wrote in his judgment.

Justice Holmes agreed with that assessment, arguing the "position in which the device was held was suitable for the device's use." 

Holmes pointed to a 2015 precedent in provincial court that said it didn't matter that a phone was dead because that didn't change the definition of an electronic device.

A distracted driving ticket costs $368 and four penalty points on a driver's record.