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Using a Mobile Phone While Driving

In New South Wales, it is an offence to use a mobile phone whilst driving. The rules that apply to a driver and the penalties applicable will be determined by factors such as:

  • whether they are a Learner, Provisional or Unrestricted Licence holder;
  • whether the offence was committed during a double demerit period;
  • 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.

Unrestricted Licence Holders and mobile phones

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 to 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.

Bluetooth devices

Since the introduction of mobile phone cameras, there has been a significant increase in the number of matters of this nature being brought before the court. The RMS has successfully prosecuted cases where the “mobile phone” was not actually a phone, but an iPod that had Bluetooth capabilities, and therefore activating a carriage service.

The case that the RMS is relying on is Crescente v DPP [2009] NSWDC 129, which states:

“Any device which activates a carriage service so that there can be a transmission of a telecommunication and is portable constitutes a mobile phone. If the Bluetooth device is one capable of being held in the hand and capable of conveying or activating a carriage service then it constitutes a mobile phone. What other functions it does, does not matter.”

Practically, this means that any device, whether it be an iPod, smartwatch or navigation device that has Bluetooth capabilities, may be considered a “mobile phone” for the purposes of prosecution and therefore subject to the same penalties.

Learner And Provisional Licence Holders and mobile phones

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.

Penalties for using mobile phones while driving

For all licence holders, a ticket for using a mobile phone whilst driving comes with a fine and five 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 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, Transport for NSW 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.

For advice or representation in any matter, please contact Armstrong Legal.

Michelle Makela

This article was written by Michelle Makela

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

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