Which devices § 23(1a) StVO covers
§ 23(1a) sentence 1 StVO permits the use of an electronic device that serves or is intended to serve communication, information or organisation only under two conditions. Picking up and holding are ruled out (no. 1).
Operation must be limited to voice control and a read aloud function, or to a brief glance adapted to the road, traffic, visibility and weather conditions (no. 2). If either condition is missing, an offence has been committed.
Sentence 2 lists as examples mobile phones and car phones, touchscreens, portable tablet computers, navigation devices, televisions and playback devices with a video function or audio recorders. Devices not listed there fall under the provision only insofar as they fulfil the function described in sentence 1.
A visual output device worn on the head, such as video glasses, may not be used while driving a vehicle (§ 23(1a) sentence 3 StVO). A field of view projection, however, remains permitted as long as it displays vehicle related, traffic sign related, journey related or journey accompanying information (§ 23(1a) sentence 4 StVO).
When the phone ban does not apply
§ 23(1b) sentence 1 StVO exempts three cases from the ban. The first is the stationary vehicle. For a motor vehicle, the exemption only applies if the engine is switched off completely.
The start stop system is not enough for this. The vehicle’s automatic shutdown of the engine during combustion operation and the electric drive coming to rest are not a switching off of the engine within the meaning of this provision (§ 23(1b) sentence 2 StVO). At a red light, the exemption therefore only applies if you switched off the engine yourself.
The two remaining exemptions concern the intended operation of a breath alcohol controlled immobiliser, and stationary trams or scheduled buses at stops marked with sign 224 (§ 23(1b) sentence 1 no. 2 and 3 StVO). When reversing and parking at walking pace, the limit on a brief glance also does not apply (§ 23(1b) sentence 3 no. 1 StVO).
Fine, points and driving ban for a mobile phone offence
The legal consequences are set out in three places: the standard rate in the catalogue of fines, the number of points in Annex 13 FeV and the driving ban under § 25 StVG. The catalogue of fines grades the mobile phone offence according to whether endangerment or damage to property was added, and distinguishes drivers of motor vehicles from cyclists (BKat no. 246).
Fine levels under BKat no. 246
A mobile phone offence while driving a vehicle costs €100 (BKat no. 246.1). One point in the driver fitness register is added, because Annex 13 FeV assigns item 246.1 to the offences rated with one point under no. 3.2.15.
With endangerment, the standard rate rises to €150, with damage to property to €200. Both levels provide for a one month driving ban (BKat no. 246.2 and 246.3). Annex 13 FeV rates them under no. 2.2.8b with two points.
For cyclists, the catalogue of fines provides for a standard rate of €55 (BKat no. 246.4). Annex 13 FeV does not list this item, so no point is entered.
Points in the driver fitness register and driving ban
Points add up. At four or five points, the driving licence authority issues a written warning; at six or seven, it issues a caution; from eight points, the holder is considered unfit to drive motor vehicles and the driving licence must be withdrawn (§ 4(5) sentence 1 StVG).
The driving ban for levels 246.2 and 246.3 is based on § 25(1) sentence 1 StVG and requires a gross or persistent breach of a driver’s duties. It takes effect once the driving licence is surrendered into official custody after the decision becomes final, at the latest one month afterwards (§ 25(2) StVG).
If no driving ban against you became final in the two years before the offence, and no such finality occurs before the fine decision, this point in time is postponed. The driving ban then takes effect at the latest four months after finality (§ 25(3) sentence 1 no. 1 StVG). When you surrender the driving licence within these four months is for you to decide.
Objection, limitation and legal fees
Against the fine notice, a two week deadline runs. Against the authority, the limitation period runs. Both decide what can still be changed about the allegation. We apply for access to the file, measure the allegation against § 23(1a) and (1b) StVO, and calculate the deadlines.
Objection deadline, access to the file and limitation
You can object to the fine notice within two weeks of service, in writing or for the record, to the administrative authority that issued it (§ 67(1) sentence 1 OWiG).
With the objection, we apply for access to the file (§ 147(1) StPO via § 46(1) OWiG). Only then is it clear what the allegation is based on. This is what determines whether picking up or holding within the meaning of § 23(1a) sentence 1 no. 1 StVO has even been established.
Prosecution becomes time barred after six months (§ 26(3) sentence 1 StVG), calculated from the end of the act (§ 31(3) sentence 1 OWiG). The period is interrupted by notification that an investigation has been opened, and by the issuing of the fine notice, provided it is served within two weeks (§ 33(1) sentence 1 no. 1 and 9 OWiG).
Legal fees under the RVG and legal expenses insurance
Fine proceedings are governed by the framework fees under VV RVG, the schedule of fees forming Annex 1 to § 2(2) RVG, Part 5. The basic fee under no. 5100 VV RVG is €36 to €204 and arises once per proceeding.
For a fine of €80 to €5,000, the proceeding fee under no. 5103 and no. 5109 VV RVG is €36 to €348, and the hearing fee per day of the main hearing under no. 5110 VV RVG is €48 to €564. Added to this, under § 2(2) RVG, is the flat rate for expenses under no. 7002 VV RVG of 20 percent of the fees, up to a maximum of €20, plus value added tax.
If the main hearing becomes unnecessary through the lawyer’s involvement, an additional fee arises in the amount of the respective proceeding fee (no. 5115 VV RVG).
The lawyer determines the amount within the framework under § 14(1) sentence 1 RVG, based on the scope and difficulty of the work, the significance of the matter and the client’s income and financial circumstances.
Whether your traffic legal expenses insurance covers this depends on the agreed terms. We obtain confirmation of cover before we act.
Further information
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