What the law says
Section 300 of the Transport Operations (Road Use Management – Road Rules) Regulation Queensland states:
- The driver of a vehicle (except an emergency vehicle or police vehicle) must not use a mobile phone that the driver is holding in his or her hand while the vehicle is moving, or is stationary but not parked.
- In this section-
mobile phone does not include a CB radio or any other two-way radio.
use, in relation to a mobile phone, includes any of the following-
- (a) holding the phone to, or near, the ear, whether or not engaged in a phone call;
- (b) writing, sending or reading a text message on the phone;
- (c) turning the phone on or off;
- (d) operating any other function of the phone.
Note that while a person will generally be served with an infringement notice under section 300 for using a mobile phone whist driving, in some circumstances you may be charged with the more serious offence of dangerous operation of a vehicle under section 328A of the Criminal Code Queensland.
Section 328A of the Criminal Code states:
- A person who operates, or in any way interferes with the operation of, a vehicle dangerously in any place commits a misdemeanour.
What the police must prove
In order for the Police to prove their case at Court, they must prove each of the following matters beyond a reasonable doubt:
For the offence of using a mobile whist driving:
- The accused was driving a vehicle; AND
- The vehicle was not an emergency vehicle or police vehicle; AND
- The accused was holding a mobile phone in his or her hand; AND
- The accused was using that mobile phone; AND
- The vehicle was:
- (a) Moving; OR
- (b) Stationary, but not parked (e.g. at traffic lights).
For the offence of dangerous operation of a vehicle:
- The accused:
- (a) operated a vehicle; OR
- (b) interfered with the operation of a vehicle; AND
- The accused’s operation or interference was dangerous.
It will be necessary for the Police in every offence to prove that the accused was the person who committed the offence. Click here to learn more about identification evidence.
Maximum penalty –
- (a) If you are served with an infringement notice under section 300 of the Transport Operations (Road Use Management – Road Rules) Regulation – 20 Penalty units;
- (b) If you are convicted of dangerous operation of a vehicle under section 328A of Criminal Code – 200 penalty units or 3 years imprisonment.
Penalty unit = $100.00
Note that if you are convicted for dangerous operation of a vehicle, the penalty will be more severe where there are aggravating circumstances (e.g. intoxication) or where you are a repeat offender. Click here to find out more about the offence of dangerous operation of a motor vehicle.
Which court will hear the matter
In respect of the offence of using a mobile phone whist driving, this matter will generally only be heard in court if you fight the infringement notice. Under section 3(5) of the Criminal Code Act Queensland this offence is classed a simple offence and therefore may be heard in the Magistrates Court pursuant to section 19 of the Justices Act Queensland.
In respect of the offence of dangerous operation of a vehicle, this offence is an indictable offence. As a general rule, indictable offences of this nature must be heard in the District Court, however in practice they will often be heard summarily in the Magistrates Court by virtue of section 552B(j) of the Criminal Code Act Queensland.
Possible defences to the offence of using a mobile phone whist driving include but are not limited to:
- The accused was not driving a vehicle.
- The vehicle was not moving.
- The vehicle was parked.
- The vehicle was an emergency vehicle or police vehicle.
- The accused was not holding the mobile phone in his or her hand.
- The accused was not using the mobile phone.
- Duress – example: there was a threat of harm to the accused or another person that the accused reasonably believe would be carried out if he/she did not use his or her mobile phone whilst driving.
- Necessity – example: there was an extraordinary emergency that compelled the accused to use his or her mobile phone whilst driving.
- Identification i.e. the accused was not the driver.