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    A complete guide for how to get off a mobile phone fine offence, including defences and how many demerit points are incurred

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      Are cipher phones illegal in Australia?

      How to contest a mobile phone fine offence

      A regular questions traffic lawyers deal with is how to get off a mobile phone fine offence. Using a mobile phone while driving in New South Wales is a serious offence.

      The NSW Government attempted to decrease road injuries and fatalities by implementing the Mobile Phone Detection Camera Program. 

      This has lead to a significant increase in the number of these fines that are issued. The subsequent demerit points incurred often lead to driver licence suspension.

      How to Get Off a Mobile Phone Fine Offence

      You can get off a mobile phone offence by requesting a review through Revenue NSW or electing to contest the fine in Court. If the review is unsuccessful, you can still fight the fine in the Local Court. 

      It is important to note that there are strict time limits for electing a fine to the Local Court. This is usually 28 days from the date you received the penalty notice. You should also be mindful that if you pay the fine you will not be able to contest it. As such you should make sure that you do not pay the fine.  

      Elect the fine to Court

      You can elect the penalty notice for using a mobile phone while driving in NSW to Court instead of paying the fine.

      In order to elect the fine to court you will need to submit a court election form. This is available on the Revenue NSW website, or you can apply by writing to Revenue NSW. If you correctly elect the fine to court, you will then receive a Court Attendance Notice. The notice will provide the necessary information regarding the location and hearing date. 

      You can either plead not guilty or guilty to the offence. 

      Pleading not guilty

      If you are pleading not guilty to using a mobile phone while driving, the prosecution will have to prove, beyond reasonable doubt that:

      1. You were driving a vehicle;
      2. While driving the vehicle you were using a device;
      3. That device was a mobile phone

      The most common issue the prosecution run into is proving the device was a mobile phone. Where a mobile phone camera detected the driver, it is a question of fact for the Magistrate as to whether the device was in fact a mobile phone. 

      However, a bear assertion that the device was something else will not be sufficient. If you are asserting the device was something other than a mobile phone, you will need to raise this in evidence. You will also be subject to cross-examination by an experienced prosecutor.

      That is why it is crucial to be represented by leading Sydney traffic lawyers. Astor Legal have an unmatched record of fighting and beating mobile phone fines through meticulous preparation and persuasive submissions in court.

      Defences for Mobile Phone Offences

      Defences to using a mobile phone while driving are contained in Regulation 300 of the Road Rules 2014 (NSW) and include:

      ·      The mobile phone was your pocket while driving;

      ·      You used the phone in a police vehicle or emergency vehicle;

      ·      You were using the phone screen as a visual display, or the phone was securely mounted to the vehicle;

      ·      The vehicle was not being driven while you were using the mobile phone.

      Pleading guilty

      Even if you are pleading guilty to illegally using a mobile phone while driving, you can still avoid incurring any demerit points.

      This is achieved by the court imposing a Section 10. This is where you plead guilty but there is no conviction recorded against you. This has the practical effect of no demerit points being imposed and no fine being imposed either. The legislation is contained in Section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

      There are a number of factors that the court takes into account when deciding whether to dismiss the use mobile phone fine through Section 10. These include:

      • The circumstances of the offence;
      • The level danger the offence caused;
      • The number of persons put at risk;
      • Whether you are genuinely remorseful;
      • What steps you have taken to demonstrate prospects of rehabilitation;
      • Whether you are unlikely to re-offend;
      • Your traffic record;
      • Your need for a driver’s licence;
      • Whether you have completed a traffic offenders program.

      The above factors need to be established through documentary or other evidence. It is not sufficient for you to simply attend court and ask for no conviction to be recorded against you.

      The majority of use mobile phone while driving offences that are dealt with at court result in convictions being imposed. That is why your case needs to be prepared and presented well before a Magistrate to persuade them not to record a conviction. You need to be distinguished from the numerous other similar cases that Magistrate’s deal with day in and day out.

      Astor Legal provide all of our clients with guides and templates for documents which are required, such as character references and apology letters. We are also able to guide our clients through every step of the process including arguing on their behalf in court.

      RMS Licence Appeal

      If you are a provisional driver such as a p-plater, then you have the option of paying the penalty notice and appealing the demerit points suspension to Court.

      Payment of the penalty notice for a mobile phone offence will automatically incur the demerit points against your licence. If these points will cause you to exceed your demerit point limit, you will be subject to a demerit point suspension.

      However, you can appeal the licence suspension by filing a licence appeal once you receive the RMS suspension letter. This will lodge an appeal of the licence suspension with the court.

      At court a licence suspension appeal lawyer Magistrate can either allow the appeal by eliminating your suspension period, vary the licence suspension period by reducing to a degree or dismiss the appeal and not reduce the suspension period.

      How Much Does Going to Court Cost?

      The cost of going to Court for a use mobile phone while driving fine depends on whether you are successful or not. If you are found not guilty of the offence, you do not have pay anything.

      However, if you are found guilty and receive a conviction, the court can impose a monetary fine of up to $2,200. 

      The real cost is usually the loss of licence which is a consequence of the loss of demerit points. That is why it is important that you are represented in court by an experienced traffic lawyer who knows how to beat mobile phone offences.

      Mobile Phone Laws in NSW

      Mobile phone laws and mobile phone fines in NSW carry 5 demerit points. This applies whether you are an unrestricted licence holder or a provisional licence holder.

      You can be found guilty pursuant to Regulation 300 of the Road Rules 2014 (NSW) if you use a mobile phone in a vehicle. 

      Examples of using a mobile phone while driving include: 

      ·      Sending information or typing anything on the mobile phone;

      ·      Turning a mobile phone on or off;

      ·      Holding a mobile phone;

      ·      Looking at anything on the screen of the mobile phone.

      There some exceptions for unrestricted licence drivers which include:

      ·      Answering calls with a hands-free device;

      ·      Answering calls if the mobile phone is in a cradle;

      ·      Using a GPS navigation system if the phone is in a cradle.

      Mobile phone laws for p-platers are much more stringent. Provisional licence holders cannot use or touch their mobile phone while driving. They also cannot use Bluetooth or the hands-free function on their phones. Nor can they use a mobile phone as a navigational tool, even when it is securely mounted and affixed to the vehicle to be used as a visual display.

      Mobile Phone Fines in NSW

      Using a mobile phone while driving is a penalty notice offence which carries an on the spot fine of $362, or $481 if detected in a school zone.

      The maximum penalty for using a mobile phone while driving in NSW is a fine of 20 penalty units (ie. $2200).

      Once you receive the fine you can pay the fine and incur the demerit points or not pay the fine and contest it in court.  

      Mobile phone fines in NSW depend on several factors:

      ·      Whether you are a driver learner, provisional, or unrestricted licence holder

      ·      If the case is heard in court

      ·      If you were using a mobile phone in a school zone.

      Mobile phone demerit points NSW

      There is a penalty of 5 demerit points for using a mobile phone while driving. This increases to 10 demerit points during double demerit periods.

      The suspension period for unrestricted driver licence holders is:

      ·      13 – 15 demerit points: three-month suspension

      ·      16 – 19 demerit points: four-month suspension

      ·      20+ demerit points: five-month suspension

      You can click here to find out how to get off a demerit point suspension. Provisional 1 licence holders only have 4 demerit points so any mobile phone fine will result in exceeding your demerit points. However, both P1 and P2 drivers are able to pay the fine and appeal any subsequent suspension period to court to either reduce it or eliminate it completely. This option is not available to full licence holders. 

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