This material is intended to help Radio Amateurs navigate the complexity of BC legislation and locate the resources necessary to make your own determination of the Distracted Driving law. This is not legal advice which can only be provided by legal professionals.
Quick Reference Guide
Over a number of court cases, meeting, emails and discussions we have come to a number of conclusions regarding the Distracted Driving laws in BC and their application to Amateur Radio. Firstly, there is no specific exception for operating amateur radio equipment in a vehicle in BC. However, amateur radio operators are permitted the use of “hand microphones” under Section 9 of B.C. Reg. 308/2009:
A person may use a hand microphone while driving or operating a motor vehicle on a highway if
- (a) the device is within easy reach of the driver’s seat, and
- (b) is securely fixed to the motor vehicle or worn securely on the person’s body in a manner that does not obstruct the person’s view of the front or sides of the motor vehicle or interfere with the safety or operating equipment of the motor vehicle
In addition, note that “hand microphones” are defined narrowly as follows:
“hand microphone” means a communication device consisting of a hand-held unit that
- (a) is both receiver and microphone,
- (b) is operated by a push and hold-to-talk function, and
- (c) allows for oral communication, but not for the transmission and receipt of oral communication at the same time.
The strict definition does not permit operating the transceiver to adjust volume, change channel etc., other than keying the transceiver via the microphone using only the push-to-talk (PTT) button. Specifically the “hand microphone” exception does not:
- include operation of the radio controls
- include microphones with additional functions
- explicitly include hands free operation which is only defined as a “hands-free telephone function”
- apply to “N” drivers
It could be argued that hands-free operation is implied but this may not stand up to a challenge in the courts.
Further use is very broadly defined in the the Motor Vehicle Act as follows:
“use”, in relation to an electronic device, means one or more of the following actions:
- (a) holding the device in a position in which it may be used;
- (b) operating one or more of the device’s functions;
- (c) communicating orally by means of the device with another person or another device;
- (d) taking another action that is set out in the regulations by means of, with or in relation to an electronic device.
Also B.C. Reg. 308/2009 adds a further very broad definition of use:
A person who watches the screen of an electronic device uses the device for the purposes of paragraph (d) of the definition of “use” in section 214.1 of the Act.
Distracted driving laws have been with us in British Columbia since 2010. Amateur radio has long been recognized as a service used in emergencies going back to the Fraser River Flood of 1948 and resulting in the issue of amateur radio license plates so that operators can be easily identified. Two-way radio operation, including by amateur radio operators, is exempt from the distracted driving law under certain limitations. However, recent changes in 2014 have caused considerable confusion resulting in successful conviction of amateur radio operators, several meetings at our radio club, people seeking clarification from the Ministry of Justice and a visit to our radio club from Delta Traffic Police to answer questions.
From our investigation, amateur radio operation is permitted in a vehicle under the distracted driving law. Specifically, under the regulation:
- A person may use a hand microphone while driving or operating a motor vehicle on a highway if:
- (a) the device is within easy reach of the driver’s seat, and
- (b) is securely fixed to the motor vehicle or worn securely on the person’s body in a manner that does not obstruct the person’s view of the front or sides of the motor vehicle or interfere with the safety or operating equipment of the motor vehicle.
- The regulation only refers to the use of a “hand microphone” and does not suggest that operating the radio (adjusting the radio volume, changing channel, tuning, etc.) is permitted. It seems that the “hand microphone” is the device that must be in easy reach.
- “Securely fixed” indicates the radio should be bolted or clipped to the vehicle or in a harness or clipped on to a belt. Resting the radio on the console, in a cup holder or on the adjacent seat may not be considered secure.
We are nevertheless required to operate the vehicle safely and during the presentation from Delta Traffic Police we are advised that you could potentially be charged with driving without due care and attention if you are involved in an accident even when operating under the “hand microphone” exception.
Recently there has been considerable enforcement of the distracted driving laws. We were also advised that not all traffic police a fully aware of the law and regulation. It might be necessary to provide education when stopped in order to avoid receiving a ticket or having to go to traffic court.This should be done in a constructive and non-confrontational manner. The following resources may be useful to help clarify the situation.
The legislation is defined in the Motor Vehicle Act, Part 3.1 — Use of Electronic Devices while Driving. This permits further details to be defined in B.C. Reg. 308/2009, Use of Electronic Devices While Driving Regulations. These were updated at then end of 2014 to increase the penalty so that all electronic device use carries the same penalty, including the fine of $167 and 3 penalty points.
There is also a Ministry of Justice guide on Use of Electronic Devices While Driving which was also revised to version 3.0 in October 2014 to reflect the changes in legislation. Unfortunately the guide seems misleading and confusing. For instance, it suggests that some electronic devices are permitted, such as handy talkies and amateur use of mobile data terminals, even though they are not permitted by the regulation. Further confusion was caused by the removal of a section from the previous version of the guide on amateur radio operation of “two-way radios”, even though the Motor Vehicle Act and Regulation has not changed in this regard. The section of the new guide (version 3) on “hand microphones” should be applicable to radio amateurs, but states it is “used principally for commercial purposes (e.g., delivery business)” and amateur radio operation is not explicitly identified.
As a result of several email exchanges the Ministry of Justice has confirmed (MoJ Email 1) that:
“The recent changes do not affect what devices are permitted for use while driving. Drivers have been given an exemption and are permitted to use two-way radios where the transmission of sound is over a set radio frequency and allow for oral communication, but not the transmission and receipt of oral communication at the same time. Handheld radios (or hand microphones as they are called in the Use of Electronic Devices While Driving Regulation [the Regulation]) are only permitted if:
- a) the device is within easy reach of the driver’s seat, and
- b) is securely fixed to the motor vehicle or worn securely on the person’s body in a manner that does not interfere with safe operation of the vehicle.”
Since this response again did not specifically identify amateur radio as a permitted use, further clarification has been obtained (MoJ Email 2):
“There have been no changes to the regulations that set out what devices may be used while driving. The use of hand-held microphones and amateur radios are permitted provided the device is fixed to the motor vehicle or worn securely on the driver’s body in a manner that does not obstruct the driver’s view nor does it interfere with the safe operation of the motor vehicle.”
In conclusion, the 2014 changes to legislation did not change the devices that are permitted and hand-held microphones of two-way amateur radios remain permitted. It is recommended that you carry copies of the above documents, especially B.C. Reg. 308/2009 in your vehicle for education purposes along with a copy of your amateur radio certificate.