Use Mobile Phone While Driving

In New South Wales, it is an offence to use a mobile phone while driving. The maximum penalty for this offence is a fine of $2,200, if heard in Court.

The infringement notice amount for driving while using a mobile phone is $423 or $562 if the usage was detected in a school zone. This offence carries 5 demerit points and 10 demerit points if detected during double demerits.

If you are caught driving while using mobile phone whilst on your learners licence or provisional licence, the demerit points incurred will result in a 3 month suspension of your licence. This can be appealed in Court by way of a Licence Suspension Appeal (discussed below in FAQ’s). Full licence holders have the option to Court Elect the matter also.

What is Use Mobile Phone while Driving (for a full licence holder)?

The offence of Use Mobile Phone while Driving is regulated under Regulation 300 of the Road Rules 2014 (NSW) which states:

1. The driver of a vehicle must not use a mobile phone while the vehicle is moving, or is stationary but not parked, unless –

1. 1. The phone is being used to make or receive an audio phone call or ot perform an audio playing function and the body of the phone –
      1. Is secured in a mounting affixed to the vehicle while being so used, or
      2. Is not secured is a mounting affixed to the vehicle and is not being held by the driver, and the use of the phone does not require the driver, at any time while using it, to press anything on the body of the phone or to otherwise manipulate any part of the body of the phone, or
   2. The phone is functioning as a visual display that is being used as a driver’s aid and the phone is secured in a mounting affixed to the vehicle, or
   3. The vehicle is an emergency vehicle or a police vehicle, or
   4. The driver is exempt from this rule under another law of this jurisdiction.

What is ‘Use’ a Mobile Phone Classified as?

Some classifications of using a mobile phone 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 important to note that simply holding your phone whilst driving satisfies this offence. 

What is a ‘Driver’s Aid’?

• Closed-circuit television security cameras.

• Dispatch systems.

• Navigational or intelligent highway and vehicle system equipment.

• Rearview screens.

• Ticket-issuing machines.

• Vehicle monitoring devices.

What is Use Mobile Phone while Driving (for a learner or a provisional licence holder)?

Regulation 300-1 of the Road Rules 2014 (NSW) provides the rules relating to learner and provisional licence holders and states:

1. 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.

Learner or provisional licence holders cannot use Bluetooth or “hands free” functions on their phone. These licence holders are also unable to use their phone for navigation purposes such as using iPhone or Google maps.

The following acts might constitute Use Mobile Phone while Driving:

• You are driving with one hand on the wheel and another hand using your phone to text someone.
• You are on your provisional licence and are using your phone for maps.

What must be proven?

For a person to be found guilty of Use Mobile Phone while Driving, the Prosecution must prove each of the following matters beyond a reasonable doubt:

• That you were driving a motor vehicle/in control of a motor vehicle that is turned on;
• That you were physically holding or controlling a mobile phone (full licence), or;
• That you were using your phone for Bluetooth or navigation purposes (learner or provisional licence).

If the Prosecution do not prove every single one of the above elements, you will be found not guilty.

Which Court Will Hear the Matter?

This offence is a summary offence and will be finalised in the Local Court.

Possible Defences for Use Mobile Phone while Driving

The following defences may be available for a Failing to Stop for Police charge:

• Honest and reasonable mistake of fact (e.g. you genuinely were of the belief that you were not breaking the law by touching your phone whilst the car was parked).
• Duress or necessity.
• Passing the phone to the passenger (full licence holders are permitted to pass the phone to the passenger in the car).
• Purposes of payment (e.g. making payment at the exit of a carpark using your phone).

Common Questions about Use Mobile Phone while Driving

Will I receive a criminal conviction?

A conviction and criminal record for this offence is possible, depending on the circumstances. 

The consequences of a conviction can be serious depending upon what you do for a living. Some jobs require you to have no criminal convictions and a driver use mobile phone conviction may be detrimental if your job involves driving, so it is very important that you contact Armstrong Legal to assist you with this. 

Can I use a GPS Device that is not a Mobile Phone if I am on my Provisional Licence?

Yes you can, as long as the device is not a mobile phone and the device is mounted securely to the vehicle and does not obstruct your view of the road while driving.

Do I have to go to Court for this offence?

If a camera detects you using your mobile phone while driving, you will be issued with an infringement notice. This means you can either pay the fine and incur the demerit points or you can elect to have your matter heard in Court (full licence holders). If you receive an infringement notice and you are on your learners or provisional licence, you can either pay the fine (you will lose your licence) or you can appeal the licence suspension in Court. 

If a Police officer pulls you over and fines you for driving while using a mobile phone, they can either issue you with an infringement notice or issue you with a Court Attendance Notice. If you receive a Court Attendance Notice, you are legally required to attend Court.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.