Using your phone while driving is a penalty notice offence. This means, that instead of getting a ‘court attendance notice’ which would require you to attend court, the police can instead give you a penalty notice on-the-spot- which is what a Perth motorist received when he was caught driving whilst using his mobile phone watching porn.

As an explanation for why he was using his mobile phone while driving, the Perth driver told the WA police officer, “I was watching porn”.

The Perth motorist’s honest explanation got him a $400 on-the-spot fine which carries 3 demerit points in Western Australia. In comparison NSW has the most toughest demerit point penalties for mobile phone offences, with an on-the-spot fine of $349 and 5 demerit points.

While generally it isn’t an offence to watch pornography, in NSW, watching the screen of your phone to watch pornography with the phone in your hand or lap is a breach of rule 300 of the Road Rules 2014 (NSW).

Harsher Mobile Phone Laws for Learner and Provisional Licence Holders in NSW

The mobile phone laws in NSW apply differently for different class of drivers. In NSW, the mobile phone laws are harsher for “L” and “P” plate drivers than for full licence holders.

Unfortunately, unlike a full licence holder, under rule 300-1 of the Road Rules 2014 (NSW), a Learner or Provisional licence holder in NSW is not allowed to use a mobile phone “whether or not held by the driver”. This means that a “P” or “L” plate driver is not allowed to use a mobile phone while driving using a Bluetooth or even where it is securely mounted and affixed to the vehicle to be used as a visual display.

Under rule 300 of the Road Rules 2014 (NSW), an unrestricted driver licence holder in NSW can only be guilty of driving while using a mobile phone if the police can prove each of the following 2 points in court:

  1. While driving a motor vehicle, you were ‘using a mobile phone’ by doing any of the following:
    • Operating any function of the mobile phone; or
    • Turning the phone off; or
    • Looking at the screen of the phone; or
    • Using the phone by entering something into it; or
    • Holding the mobile phone; and
  2. The motor vehicle you were driving at the time was either stationary but not parked, or the motor vehicle was moving.

Common Defences to Mobile Phone Offences for Unrestricted Driver Licence Holders

You will be not guilty for the charge of using a mobile phone while driving in NSW if any one or more of the following defences apply to a full licence holder:

  • While driving, your phone was in your pocket or a pouch that you were wearing;
  • While driving, your phone automatically received a notification (i.e. email or text), where the notification didn’t actually show the content of the communication on the screen of the phone;
  • While driving, you were using your phone in a police vehicle or emergency vehicle;
  • While driving, you were viewing the phone screen as a visual display or you were using the mobile phone while the phone was securely mounted and affixed to your motor vehicle;
  • While driving, you were using the phone through a Bluetooth in the car without touching or holding the mobile phone;
  • While using your mobile phone and seated inside your motor vehicle, your vehicle was parked and stationary.

Your Options for Mobile Phone Offences in NSW

A penalty notice allows you to finalise the matter by paying the fine. Upon paying that fine, you will then be automatically hit with the 5 demerit points. However, there are two main options you can take when faced with a mobile phone offence in NSW.

It is recommended to get some guidance and advice from an experienced traffic lawyer as to which option best suits your circumstances and case. Below is an outline of your options.

Option 1: To ‘Court Elect’ the Penalty Notice

Upon receiving a penalty notice for using a mobile phone while driving, instead of paying the fine, you can ‘court elect’ the infringement and appear before a Magistrate in the Local Court.

At court, you then have 1 of two options:

  1. Enter a plea of guilty and ask the Magistrate for leniency with the hope to avoid incurring demerit points and a fine. You can avoid demerit points and fine if the Magistrate sentences you to a nsw section 10 (Conditional Release Order); or
  2. Enter a plea of not guilty and defend the allegation if you’re innocent.

By taking your mobile phone offence to court (‘court electing’), you will be faced with a penalty of up to $2,200 fine and 5 demerit points compared to the $337 fine if you decide not to ’court elect’.

Option 2: To Pay the Penalty Notice and Appeal the RMS Demerit Point Suspension in Court

This option is commonly known as an RMS licence appeal.

If you pay the penalty notice for a mobile phone offence, you will incur the demerit points against your licence automatically (by the RMS). If as a result of this, you have exceeded your demerit point threshold limit, then you will receive a further letter from the RMS notifying you of your demerit point suspension.

The RMS’s decision to suspend your licence as a result of incurring the demerit point threshold limit can be appealed to the Local Court.

Once an RMS licence appeal is filed, you will receive a court date for the hearing. At the hearing, the Magistrate has one of the following options:

  1. Your appeal is allowed, and you are not suspended from driving. You will not incur demerit points as a result; or
  2. Your appeal is dismissed, either with or without a variation to your period of suspension. This means that the Magistrate can reduce your suspension period from anything from 1 day, 2 weeks, 1 month, but not more than the prescribed suspension period you would otherwise have been subjected to. If the suspension is varied, you will not loose demerit points if you are a “P” plater. If the suspension is not varied, then you will be subject to the suspension period and demerit points and fine.

Importantly, licence appeals for demerit point suspensions are not available for full licence holders in NSW. However, full licence holders in NSW can appeal an RMS suspension from a speeding over 30 or 45 km/h offence.

How Many Demerit Points Do I Have?

You can apply online to obtain a copy of your traffic record via the Service NSW website to find out how many demerit points you have incurred to date.

An “L” or “P1” plate holder has up to 3 demerit points, while a “P2” licence holder has up to 6 demerit points in NSW. an unrestricted or full licence holder has 12 demerit points.

The RMS will issue a demerit point suspension of 3 months if an “L”, “P1” or “P2” plate holder passes the demerit point threshold within a three-year period.

An unrestricted or full licence holder in NSW will face the following suspension periods if the following prescribed demerit point thresholds are passed:

  • Three months demerit point suspension if between 13-15 demerit points (inclusive) are incurred.
  • Four months demerit point suspension if between 16-19 demerit points (inclusive) are incurred.
  • Five-month demerit point suspension if twenty or more demerit points are incurred.

If representing yourself in court for a driving offence, click on our link to reference letter for court driving offence -on how to prepare your own good character letters.

Published on 11/09/2018

AUTHOR Jimmy Singh

Mr. Jimmy Singh is the Principal Lawyer at Criminal Defence Lawyers Australia - Leading Criminal Lawyers in Sydney, Delivering Exceptional Results in all Australian Criminal Courts.

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