A Connecticut man who says he was wrongly cited for distracted driving after police mistook a McDonald’s hash brown for a cellphone is continuing his legal fight.

The Hour reports that Westport police gave Jason Stiber a $300 distracted driving ticket in April. The Westport man challenged the charge and lost in court.

He was granted a retrial that’s scheduled to start Dec. 7.

Stiber says the officer thought a hash brown he was eating while driving was a cellphone. Stiber says phone records show he didn’t make any calls around the time he was pulled over, plus he has Bluetooth so has no reason to hold a phone while driving.

Lt. Jillian Cabana says the department stands by its story but couldn’t comment further due to pending litigation.

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Information from: The Hour, http://www.thehour.com