Motorists charged with using a hand-held device while driving — when actually using a hands-free device — are being “victimised” by the courts, according lawyer Rick Woolridge.

After mounting the first successful defence against the law last week, Mr Woolridge said the legislation needed to be revisited in order to provide more clarity over the definition of ‘use.’

“A Supreme Court case determined the wider definition of the word ‘use’, which came to mean ‘if the phone is available for use’, which is rubbish. The law needs to be looked at. It’s the most miswritten piece of legislation I’ve ever seen and what’s happened is that a lot of people have been victimised, I think, by the legal justice system on account of having what is sold as a ‘hands free device.’”

Like many other residents, Mr Woolridge’s client, a Romanian resident named Roxana Correia, had been pulled over by a police officer and charged with using a hand-held device while driving, despite the fact she was using a hands-free device, and despite the fact she wasn’t actually making a phone call when she was pulled over.

Though she attempted to explain to the police officer and show him that she was not on the phone, Mrs Correia was charged with the offence and ticketed anyway.

“I didn’t want to accept the ticket because he [the police officer] was kind of intimidating. I said I did not understand his handwriting so I am not going to take this ticket. I didn’t know what he was saying and I didn’t agree with the fact that I was on the phone. I was ticketed as handling a BlackBerry device, [but I was using a headset.] ‘Handling’ for me means I had it in-hand. This is my interpretation because English is not my mother tongue.”

But while many would rather pay a flat fine over hiring a lawyer to defend themselves, said Mrs Correia, she would not be taking the charges lying down. Now, after winning her case, she hopes others will be able to prove their innocence the same way she did.

“I wanted to win this case because a lot of people, they cannot afford a lawyer to defend their rights. What is cheaper, to pay $300 or $500 for a ticket and a [get a] few points [on your licence], or to pay a lawyer $600 an hour? Even though they are not guilty, they will plead guilty, pay, and just go with it because they cannot afford a lawyer. They cannot defend themselves and they don’t know how to defend themselves. That’s why I did this, so maybe it is easier for the next person.”

The law must be defined according to the “mischief” the legislation was drafted to prevent, said Mr Woolridge.

As it stands, there is no clarity in the law regarding the wide variety of hands-free devices now available to the average motorists, which range anywhere from in-car blu-tooth, to wireless headsets, phone-watches, and even phone-gloves, he explained.

“If the [goal] is to prevent people from holding their phone up to their ear and being distracted while driving, then define the law to that, not to the hands-free options that available.”

In terms of preventing driver distraction by law, a recent study, “Measuring Cognitive Distraction in the Automobile”, found the difference in distraction between using a cell phone and using a hands-free headset are negligible.