Under NSW law, using a mobile phone whilst driving is illegal and carries significant penalties.
But what does it mean to “use” a mobile phone? A recent case in Sydney’s Downing Centre Local Court shows that it isn’t always black and white.
The case involved a man who received an infringement notice for allegedly using his mobile phone whilst driving. His image was captured by a mobile phone detection camera. The man, however, claimed he wasn’t using his mobile phone at all, but rather he was eating some crackers. He elected to challenge the matter in Court. The man’s lawyer told the Court that “You can only be found guilty of driving while holding a mobile phone if it is proven beyond reasonable doubt that you were actually holding a mobile phone.” It is not illegal to eat whilst driving, provided “the driver has proper control of the vehicle.” In this case, the man was able to satisfy the magistrate that he had one hand on the steering wheel at all times (therefore constituting “proper control of the vehicle”) and the charge was dismissed.
What is the law?
Under the NSW Road Rules, it is an offence for a driver to use a mobile phone while the vehicle is moving, or is stationary but not parked, unless:
- the phone is being used to make or receive a call or to play music, and the phone:
- is secured in a fixed cradle and doesn’t obscure the driver’s view, or
- can be used without the driver touching the phone (such as via Bluetooth), or
- the phone is functioning as a visual display and is being used as a driver’s aid and is secured by a fixed cradle (an example of a driver’s aid is a GPS navigational app such as Google Maps).
It should be noted the above rules apply to full licence holders only. Learner, P1 and P2 licence holders are not permitted to use a mobile phone under any circumstances while driving.
What constitutes “using” a mobile phone?
“Use” includes any of the following actions by a driver:
(a) holding the body of the phone in her or his hand (whether or not engaged in a call), except while in the process of handing the phone to a passenger in the vehicle,
(b) entering or placing, other than by the use of voice, anything into the phone, or sending or looking at anything that is in the phone,
(c) turning the phone on or off,
(d) operating any other function of the phone.
What constitutes “holding” a mobile phone?
“Held” means being held by, or resting on, any part of the driver’s body, but does not include held in a pocket of the driver’s clothing or in a pouch worn by the driver. This means, for example, that you can be fined for using a mobile phone even if it is resting on your lap.
Can I use my mobile phone when I am parked?
Yes. All drivers, including learner, P1 and P2 drivers, can use a mobile phone for any function when parked out of the line of traffic. The ignition of the car does not need to be off.
Penalties
If you are issued with an infringement notice for using your mobile phone whilst driving, you will be fined and incur 5 demerit points. If a driver exceeds the demerit point threshold for their particular class of licence, Transport for NSW may also suspend their licence for a minimum period of 3 months.
However, you can elect to have the matter heard in the Local Court if you disagree with the notice.
If you are detected by police using a mobile phone, they may issue you with a court attendance notice (CAN) requiring you to attend court regardless.
If you are convicted of the offence, the maximum penalty that a Court can impose is a fine of $2,200.
