By order dated 7 November 2014, the 1st Criminal Senate of the Cologne Higher Regional Court overturned a judgment of the Cologne Local Court because it could not establish any prohibited use of a mobile phone while driving within the meaning of § 23a (1a) StVO (German Road Traffic Regulations). The Cologne Local Court, by contrast, had imposed a fine on a driver for the prohibited use of a mobile phone solely because she had picked up her mobile phone while driving in order to place it elsewhere.
Passing on the mobile phone without reading the display is not prohibited use while driving
The Local Court had found that the driver had a switched-on mobile phone in her handbag. Because her son had been searching in vain for the mobile phone inside the bag, he handed the handbag to the driver so that she could locate it. While continuing the journey, the driver searched for her mobile phone, picked it up and passed it to her son, who took the call. The Cologne Local Court classified this set of facts as prohibited use while driving, assuming that the driver had looked at the display before passing the phone on.
Higher Regional Court denies that the elements of § 23a (1a) StVO are met
The Cologne Higher Regional Court, however, took a different view. While "use" within the meaning of the provision does include "preparatory and follow-up actions," the mere relocation of the mobile phone is not covered by the statutory elements of the offence, because such an act has no connection to the functionality of the device. The Cologne Higher Regional Court further explained that passing on the mobile phone without first reading the display does not prepare any communication process of one's own. In the end, the case is to be assessed no differently than the relocation of any other object inside the vehicle. The Senate referred the proceedings back to the Local Court.
Frequently asked questions
Frequently asked questions
Does merely picking up a mobile phone while driving already constitute prohibited use under § 23a Abs. 1a StVO?
No. According to the ruling of the OLG Köln dated 07.11.2014, simply picking up and repositioning a mobile phone does not constitute prohibited use within the meaning of § 23a Abs. 1a StVO. Such a mere change of location has no connection to the device's functionality and is to be assessed no differently than moving any other object within the vehicle.
May a driver hand over the mobile phone to a passenger while driving?
Yes, handing the mobile phone to a passenger is permissible according to the OLG Köln, provided the driver does not look at the display beforehand. Since no communication activity of the driver's own is being prepared, this does not constitute prohibited use of a phone at the wheel.
What counts as use of a mobile phone within the meaning of § 23a Abs. 1a StVO?
The provision covers not only phone calls but also preparatory and follow-up actions linked to the device's functionality (e.g., reading the display, preparing a call). Merely relocating the device without any functional connection does not fall under the prohibition.
What role does looking at the display play in assessing prohibited mobile phone use?
A glance at the display can make the decisive difference, as it establishes a link to the device's functionality and may therefore qualify as use. Without looking at the display and without preparing one's own communication process, the OLG Köln has held that there is no prohibited use.