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The crackdown on using a mobile phone while driving is continuing in New South Wales.  Just in time for the October long weekend , the demerit points for using a mobile phone while driving have increased from four to five. Additionally, the offence has been added to the list of offences which incur double demerit points over specified public holiday periods. That means if you’re caught using your phone while driving this long weekend you’ll lose a whopping 10 demerit points.

What is “using” a mobile phone

Regulation 300 of the Australian Road Rules states that a driver cannot use a mobile phone while their vehicle is moving or while their vehicle is stopped but not parked. So you cannot use your phone while stopped in traffic.

Using a phone is defined very broadly and includes:

• Touching any part of the phone (unless passing it to a passenger)
• Entering anything into the phone (other than by voice)
• Looking at any information in the phone
• Turning the phone on or off
• Operating any other function of the phone

Exceptions to using a mobile phone while driving

There are some exceptions to the rule. You are permitted to use a mobile phone while driving to make a call or listen to music provided that:

• The phone is mounted in a commercially manufactured cradle or
• If not in a cradle you don’t touch or manipulate it in any way

Another exception is if the phone is being used as either a

• Navigational aid (eg using a GPS app) or
• Dispatch system (eg as an Uber driver)

It is important to note that none of these exemptions apply to the holder of a learner, P1 or P2 licence.

More ways than ever to get caught

Despite intense media coverage, the most notable being the “Get your hand off it” campaign, the offence appears to be as prolific as ever. In response, laws were enacted to allow all existing speed and red light cameras to also be used to target drivers on their mobile phones. So not only have the penalties increased, the chances  of getting caught are higher than ever.

Police have also stepped up their enforcement of mobile phone use. They have used Police walking through stopped traffic to catch drivers, and motorcycle police looking into cars while riding between lanes of stopped traffic. They have even used telephoto lenses and ‘spotter teams’ to detect drivers using phones on main roads.

Ironically, a GPS navigation app owned by Google called Waze has caused controversy by letting users share the live locations of police and cameras with other road users.

The laws relating to using a mobile phone while driving have been around quite a while now and courts are becoming less tolerant of the excuses proffered by some drivers.   Suggesting you didn’t know you couldn’t touch your phone,  were just changing the song, or  were checking a message while at the lights is unlikely to help you avoid a conviction. You are more likely to be fined and lose five demerit points.

What if I get caught using a mobile phone while driving

As a result of the increased demerit points drivers are more likely to exceed their demerit point limit. This will usually result in a 3 month suspension from the RMS. If you hold a learners, P1 or P2 licence the licence suspension can be appealed. If you hold an unrestricted licence you can elect to take a good behaviour licence for a period of 12 months.

Can I request leniency or a caution?

You can request a review of any infringement notice provided your request is in writing and within the prescribed timeframe. However it is unlikely to be accepted. Mobile phone offences are listed as one of the offences where a review will not be considered. This is due to it being an offence which puts other road users at significant risk. If you decide to request a review make sure you read which offences are ineligible for review and which excuses are not accepted.

Other double demerit point offences

Other offences that will result in double points this long weekend are speeding, seatbelts, and helmet offences. The period runs from midnight on Thursday September 27 and finishes Monday October 1 at midnight.

Astor Legal are specialist traffic and criminal lawyers. We have successfully defended mobile phone infringements and regularly represent clients in licence suspension appeals. If you’re going to lose your licence as a result of a ticket, or if you think you have a defence,  it is important you seek legal advice.