Using mobile phones while driving – what you need to know

It is well known that using your mobile phone whilst driving is an offence. Fixed and portable cameras have been operating for some time now, enabling authorities to catch drivers “in the act”. This makes it particularly difficult for drivers to contest allegations of using mobile phones while driving.

What you may not know is the penalty for the offence, and for repeat offending has increased significantly.

This article aims to break down the legislation for this offence and the penalties associated.

What is the offence?

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

What does use mean?

Use, in relation to a mobile phone, means hold the phone in the driver’s hand, or rest the phone on any part of the driver’s body;-

• whether or not the phone is on or operating; and
• whether or not for the purpose of operating the phone or a function of the phone; and
• whether or not the phone is partially or wholly supported by another part of the driver’s body or another thing.

Are there any exceptions to the offence?

The offence does not apply in the following circumstances:-

• to the extent that the mobile phone:-
  • is in a pocket of the driver’s clothing, or in a pouch worn by the driver; and
  • kept in a way that-
    • does not allow the driver to operate the phone, or function of the phone, other than using only the driver’s voice; and
    • does not allow the driver to see the face of the phone while on the phone, or a function of the phone, is operating; or

• while the vehicle is stationary and to the extent the mobile phone is in a wallet, or has attached to it a wallet, that the driver is using for any of the following purposes-
• to obtain and produce for inspection a licence, permit, authority or other document, as required under an Act or by a police officer or another person acting under an Act;
• to obtain and use money, or another form of payment, to pay for goods or services, if the place where the vehicle is stationary is a place where the goods or services are lawfully paid for (for example, a drive-through retail outlet);
• to obtain and use a card or other thing to enter a road-related area or land adjacent to a road-related area.
• To produce for inspection a digital authority or other document stored on the phone, as required under an Act or by a police officer or another person acting under an Act;
• To pay for goods or services, if the place where the vehicle is stationary is a place where the goods or services are lawfully paid for (for example, a drive through retail outlet);
• To use the phone as an electronic device that enables the driver to enter a road-related area or land adjacent to a road-related area;
• To the driver of an emergency vehicle or police vehicle.

What is the penalty?

The penalty is two-fold.

Firstly, a hefty fine is imposed. For individuals this is $1,033.88, or $5,169.38 for businesses.

Secondly, demerit points will be accumulated. In the first instance, you will accumulate four demerit points for using your mobile phone while driving. However, if the driver is caught for the same offence within one year, four additional demerit points will be accumulated.

What are my options?

If you are accused of using your mobile phone while driving you will receive an infringement notice.

Generally speaking, you are given 28 days to decide to:

• Accept liability for the offence and pay the fine;
• Submit a declaration if you were not the driver ; or
• Elect to contest the matter in court.

Taking into account the camera systems now in place for the detection of mobile phone use while driving it significantly increases the difficulty of contesting these matters in court.

If I accept liability, I’m concerned I will lose my licence, what can I do?

If you accumulate more demerit points than your licence allows, the Department of Transport will send you an ‘Accumulation of demerit points – notice to choose’ letter by post.

You will be provided the option of having your licence suspended for a ‘requisite period’, or agreeing to drive under a period of good driving behaviour period of one year.

You must notify the Department of Transport of your choice within the time frame provided for in the notice to choose letter. Failing to do so will result in the automatic suspension of your driver licence.

If you intend to keep your licence, you can choose the good driving behaviour period. The period will commence from the date you select. If you accumulate 2 or more demerit points during this period your licence will be suspended for double the original ‘requisite period’ suspension.

I am worried that more infringement notices could be issued for offences pre-dating my good driving behaviour period, will I lose my licence?

It is possible that there can be delays with the issuing of infringement notices.

Despite these delays, your licence should not be suspended if the offences pre-date the commenced of your good driving behaviour period.

What if use my mobile phone while driving during my good behaviour period?

Your licence will be suspended.

If you are concerned that you or your family will suffer severe financial hardship as a result of the lose of your licence, you might be eligible to apply for a special hardship order. It is critical that you seek legal advice from an experienced traffic offence lawyer if you are in this position.

 

[1] TORUM Road Rules Regulation 2009, section 300