By Sahar Adatia and Jimmy Singh.
According to the Heart Foundation (https://www.heartfoundation.org.au/about-us/what-we-do/heart-disease-in-australia/smoking-statistics), approximately 2.5 million Australians aged 15 years and over smoke daily, with more than 200,000 also smoking irregularly.
So, it’s not uncommon that many of them ask whether it is illegal to smoke in your car whilst driving.
In Australia, while it is not illegal to smoke in your car, laws are now in place that make it illegal to smoke in a car with young passengers on board.
Needless to say, smoking also forces drivers to take a hand off the steering wheel, and this in turn makes driving more dangerous, which could lead to a more serious charge of negligent driving (https://www.criminaldefencelawyers.com.au/traffic-law/offences/negligent-driving/).
Case in Point: Unlicensed Teenager Caught Driving Car Whilst Smoking with Mother Beside Her
On 21 April 2019, a 15-year-old Mulgrave girl was allegedly caught driving a car and smoking a cigarette (https://www.dailymail.co.uk/news/article-6944233/Unlicensed-driver-15-caught-smoking-cigarette-child-car.html) with her mother seated beside her and a child in the back seat.
It is reported that the Mulgrave girl was driving on the Princes Highway in Melbourne when Victorian Police spotted the teenager.
According to a police statement, the car was pulled over and inspections were carried out on the driver, who turned out to be a girl aged 15 with no driver’s license.
“The teenager’s mother was the front seat passenger,” the statement read.
The car, which belongs to the girl’s mother, was impounded by police.
Meanwhile, the teen is set to be charged on summons with driving without a permit.
In Victoria in 2010, it became illegal for a person to smoke in a motor vehicle if a child under the age of 18 is present.
“This ban includes whether the car is moving or not, whether the windows are open or closed and whether the roof is down or not,” according to VicRoads (http://www.health.vic.gov.au/healthvictoria/feb10/ban.htm).
In Victoria, if a person is caught smoking in a car whilst a minor is present, they could receive a warning or a maximum fine of $322.38.
If the person decides to take the matter to court, they could face a fine of $805.95.
Is it illegal to Smoke in Your Car While Driving in NSW?
The NRMA advises (https://www.mynrma.com.au/cars-and-driving/driver-training-and-licences/resources/smoking-while-driving) that while smoking could be considered a distraction under Rule 297(1) NSW Road Rules 2014, it is not illegal.
Driver distraction occurs when a driver’s attention is diverted away from the task of driving to a competing activity. This can be making a phone call or eating, or dragging vision away from the road to attend to a screaming baby.
Smoking is considered an activity that can lead to driver distraction, along with drinking and listening to the radio.
However, under NSW Road Rule 291(1), smoking behind the wheel is not illegal.
NSW Road Rule 291(1) (https://www.legislation.nsw.gov.au/#/view/regulation/2014/758/part18/div1/rule297) prohibits a driver from driving a vehicle while he/she does not have proper control of that vehicle.
Not having proper control of a vehicle can include doing things like applying make-up while driving (https://www.criminaldefencelawyers.com.au/blog/is-it-illegal-to-drive-in-thongs-or-apply-makeup-while-driving/).
Anyone who breaches this road rule will face a maximum fine of up to $2,200 if it ends up being heard by a Magistrate in the Local Court (on a ‘court election’). The Magistrate also has the option of not imposing a conviction, such as conditional release order without conviction (https://www.criminaldefencelawyers.com.au/criminal-law/penalties/nsw/conditional-release-order/), even after a plea of guilty is entered to this offence.
As an alternative to this matter being dealt with in court, a police officer can and will usually issue a penalty notice as an on-the-spot fine to anyone they believe has or is committing this offence in NSW.
The on-the-spot fine is $448. Payment of this fine will not result in a conviction but will result in 3 demerit points taken off you.
The on-the-spot fine for committing this offence in a school zone is $561 with 4 demerit points.
Payment of the fine will automatically result in the person incurring the demerit points. This will be a significant factor to consider for someone who may, as a result, end up going over their demerit point threshold and then given a demerit point suspension notice from the RMS. In which case, the option to court-elect may be more suitable in an attempt to convince the court to not impose a conviction.
If the court agrees not to impose a conviction by imposing a section 10 dismissal or conditional release order without conviction, there will be no loss of demerit points even after pleading guilty in court.
In conclusion, a driver simply must not operate a vehicle unless the driver has proper control of it.
The Law on Smoking in a Motor Vehicle in NSW when a Child Under 16 is on Board
As the NRMA advises, the practice of smoking in a car becomes a concern when there are young passengers riding in the vehicle, specifically those under the age of 16.
Smoking in a motor vehicle with a child under the age of 16 is regarded as an offence under section 30(1) Public Health (Tobacco) Act 2008 (NSW) (https://www.legislation.nsw.gov.au/#/view/act/2008/94/part4/div2/sec30). Anyone guilty of this offence will face a fine of up to $1,100 if the matter is court-elected and dealt by a Local Court Magistrate.
Otherwise, the on-the-spot fine is $250 for this offence.
The driver of a vehicle will also face the same penalty if a passenger other than the driver in the vehicle is smoking while there is a child under the age of 16 present in the vehicle. (Rule 30(2) Public Health (Tobacco) Act 2008 (NSW)).
Why was the Law Introduced?
The law came into place on 1 July 2009 and was introduced by the NSW Government (https://www.health.nsw.gov.au/tobacco/Factsheets/smoke-free-cars.pdf) to protect children from second-hand tobacco smoke, which can cause considerable harm to their developing lungs and lead to higher risk of asthma as well as other respiratory infections.
Second-hand tobacco smoke is also known as environmental tobacco smoke – or commonly referred to as passive smoking. It combines the smoke exhaled by the smoker and smoke that drifts from the end of a burning cigarette.
Tobacco smoke contains over 4,000 chemicals. More than 60 of these are known to cause cancer in humans.
What About Electronic Cigarettes?
From 1 December 2015, under the Public Health (Tobacco) Act 2008, it also became an offence to use an electronic cigarette in a car with a child under the age of 16 years on board.
E-cigarettes are not risk free. They have the potential to expose users and those nearby to chemicals and toxins such as propylene glycol, glycerol or ethylene glycol that can cause adverse health effects, particularly in children.
E-liquids or vapour may also contain potentially harmful chemicals that are not present in smoke from tobacco cigarettes.
As established experienced traffic defence lawyers in Sydney (https://www.criminaldefencelawyers.com.au/), Parramatta, Liverpool and 5 other locations in NSW, we appear in all courts specialising in traffic and criminal cases.
We are available 24/7 on (02) 8606 2218.