Using a Mobile Phone While Driving
In NSW, it is an offence to use a mobile phone whilst driving. The rules that apply to you and the penalties available are will be determined by the operation of number of different factors, such as:-
- If you are a Learner, Provisional or Unrestricted Licence holder;
- The time of the year – that is, whether the offence was committed during a double demerit period;
- The location and time of the day – that is, whether the offence was committed in a school zone;
- Whether the matter is finalised by paying the fine, or is heard in a Local Court of NSW.
The Rule – Unrestricted Licence Holders:
Regulation 300 of the Road Rules 2014 states: “The driver of a vehicle must not use a mobile phone while the vehicle is moving, or is stationary but not parked.”
“Use” is defined in the same section. This definition contains a non-exhaustive list of actions that constitute “using” a mobile phone. These are:-
- Holding the body of the phone in his or her hand (whether or not engaged in a phone call), except while in process of giving the body of the phone to a passenger in the vehicle.
- Entering or placing, other than by the use of voice, anything into the phone.
- Touching or holding the phone while sending or looking at anything that is in the phone.
- Turning the phone on or off.
- Operating any function of the phone.
It is clear from these examples that almost anything that involves you touching or holding the phone comes under the definition of ‘use’. It is important that you realise that ‘use’ does not just mean making/receiving a call, text message or other communication. Simply holding your phone is enough to be issued a ticket for using a mobile phone whilst driving.
The Rule – Learner And Provisional Licence Holders:
Regulation 300-1 of the Road Rules 2014 provides the rules for Learner and Provisional Licence Holders. The rule states: “The driver of a vehicle (except an emergency vehicle or a Police vehicle) who is the holder of a learner licence or a provisional P1 or P2 licence must not use a mobile phone, whether or not held by a driver, while the vehicle is moving or is stationary but not parked.”
In contrast to Regulation 300, set out above, the only exemption provided for this rule is for Police or emergency vehicles.
The effect of this is that Learner and Provisional Licence Holders cannot use Bluetooth or ‘hands free’ functions on their phone. Furthermore, they cannot use their phone as a navigational tool, as the use of their phones in that way will still constitute an offence under these provisions.
These new provisions for Learner and Provisional Licence holders, whilst came into force in 2017, make mobile phone offences much more onerous for Learner and Provisional Licence holders.
The penalties for using a mobile phone increased on 1 September 2018. For all licence holders, a ticket for using a mobile phone whilst driving comes with a fine and five (5) demerit points. For Learner and Provisional 1 licence holders, this is more than your entire allocation of demerit points.
The double demerit point scheme applies to mobile phone offences. That means if you are issued a ticket for using a mobile phone whilst driving during a double demerit period, ten (10) demerit points will be applied to your licence. For all Learner and Provisional licence holders, this is more than your entire allocation of demerit points.
What if the Matter is Heard in Court?
If you have been issued with an infringement, you have the right to have the matter heard in a Local Court of NSW.
Alternatively, if you are detected by Police using a mobile phone whilst driving, Police may choose not to issue you an infringement. Instead, they may issue you with a Court Attendance Notice, determining that the matter must proceed to Court directly. However, this is rare.
If the matter is being determined by a Court, the maximum penalty available to the Court is a fine of 20 penalty units. On conviction, the Roads and Maritime Service will apply the demerit points to your licence. The Magistrate does not have discretion over the number of demerit points applied to your licence for any offence.
WHERE TO NEXT?
In NSW, traffic offences are treated seriously. Therefore, it is important to get competent legal advice as early as possible, whether you have received a penalty notice, had your licence suspended or been charged with a serious offence. Our lawyers are highly experienced and understand the difficulties you face without a licence. We can guide you through the process while dealing with the various authorities related to your matter.