USE OF MOBILE PHONE WHILE DRIVING

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Mobile phone usage whilst driving is a dangerous and illegal mix. Yet, this message often fails to resonate with many motorists. Driving whilst using a mobile phone is dangerous as it leads to delayed reaction times, can cause a driver to wander into other lanes or even onto the opposite side of the road, can alter braking, and is also believed to increase the chances of an accident four-fold.

Preliminary data as of 1 September 2020 has revealed that there have been 202 casualty crashes in NSW since 2012, all involving a driver who has used a handheld mobile phone. This has resulted in 18 deaths and 271 injuries. Of the 202 casualty crashes, 103 have occurred in country NSW, and these have resulted in 15 deaths and 132 injuries.

It is also important to mention that mobile phone distraction and its contribution to road trauma is an underreported issue, as there is difficulty in being able to gather appropriate evidence at crash sites.

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    Mobile phone while driving ?

    What is permissible and what is impermissible?

    Simply put, the use of a mobile phone in NSW is illegal.

    However, there are some legal, or permissible uses of a mobile phone. The use of a mobile phone will be considered legal where the driver of a motor vehicle wishes to make or answer calls, and use audio playing functions ONLY if the device:

    • is held within a cradle which is attached to some part of the vehicle, not obstructing a driver’s vision, or
    • is being operated without being touched, for example via a Bluetooth connection.

    These are the very few exceptions to a mobile phone being used whilst driving. They are only permitted to be performed by unrestricted licence holders. However, Learner drivers (L-Plates) and Provisional drivers (P1 and P2) are not allowed to use a mobile phone under any circumstance, including in the aforementioned.

    Functions such as holding a mobile phone whether it be in a driver’s hands, or between a driver’s ears and shoulders, video calling, browsing, texting, talking whilst holding a mobile phone, and taking photos, are not allowed. If a driver wants to perform such functions, the vehicle must be parked and away from traffic.

    The Law on Mobile Phone Use

    The Road Rules 2014- Regulation 300 mandates the use of mobile phones in New South Wales (NSW). Section 1 provides:

    • The driver of a vehicle must not 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 an audio phone call or to perform an audio playing function and the body of the phone—
    • is secured in a mounting affixed to the vehicle while being so used, or
    • is not secured in a mounting affixed to the vehicle and is not being held by the driver, and the use of the phone does not require the driver, at any time while using it, to press anything on the body of the phone or to otherwise manipulate any part of the body of the phone, or
    • the phone is functioning as a visual display unit that is being used as a driver’s aid and the phone is secured in a mounting affixed to the vehicle, or
    • the vehicle is an emergency vehicle or a police vehicle, or
    • the driver is exempt from this rule under another law of this jurisdiction.

    Maximum Penalty: 20 penalty units.

    In this section, ‘use’ includes activities such as:

    • holding the body of the phone in her or his hand (whether or not engaged in a phone call), except while in the process of giving the body of the phone to a passenger in the vehicle,
    • 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,
    • turning the phone on or off,
    • operating any other function of the phone

    Penalties

    The following table identifies the penalties applicable for mobile phone usage against drivers holding an unrestricted licence, and Learner or Provisional licence.

    Offence Penalty Notice Fines Points Double Demerits Law
    Driving using mobile phone when not permitted (not L, P1 or P2) $349 5 Yes Road Rules 2014 REG 300
    Learner or Provisional driver use mobile phone while driving $349 5 Yes Road Rules 2014 REG 300-1
    Drive using mobile phone when not permitted (school zone) (not L, P1 or P2) $464 5 Yes Road Rules 2014 RED 300
    Learner or Provisional driver use mobile phone while driving (school zone) $464 5 Yes Road Rules 2014 RED 300-1

    Demerit Point Limits

    In NSW, the demerit point limits for each group of drivers is as follows:

    • Professional drivers: 14 points
    • Unrestricted licence: 13 points
    • Provisional P2 licence: 7 points
    • Provisional P1 licence: 4 points
    • Learner licence: 4 points

    This means that Learner and Provisional (P1) licence holders will surpass their allocated demerit points. In such case, the suspension period will be 3 months. This suspension period is also applicable to P2 licence holders as all Provisional drivers must not use a mobile phone whilst driving, in any way, and under any circumstances.

    For drivers holding an unrestricted licence, the suspension period is dependent upon the amount of accumulated demerit points:

    • 13-15 points: 3-month suspension
    • 16-19 points: 4-month suspension
    • 20 + points: 5-month suspension

    Your Options in Court

    Pleading not Guilty

    A conviction for the offence of using a mobile phone whilst driving requires police to prove the following two elements, beyond reasonable doubt:

    • A driver was using a mobile phone, and
    • The vehicle was moving, or was stationary, but not parked.

    As previously mentioned, in the case of unrestricted drivers, a mobile phone may be used for making and answering calls and for audio playing functions so long as the device is within a cradle attached to the vehicle or is being used handsfree. Learner and Provisional (P1 and P2) drivers are prohibited from using a mobile under any circumstances.

    Pleading Guilty

    If you have been charged with using a mobile phone whilst driving, and agree to this, you may choose to plead guilty. Guilty pleas demonstrate to the court that a driver is remorseful and aware of their offence, and are often viewed favourably by the Court, entitling a driver to a discounted penalty.

    A Common penalty that may be imposed by a Court is as follows:

    Section 10 – No conviction recorded: A driver may be discharged with no conviction recorded under section 10 of the Crimes (Sentencing Procedure) Act 1999. This is the most favourable outcome, as it means no loss of demerit points, or no suspension or disqualification periods need to be served.

    Under a s10 discharge, the Court considers the antecedents and nature of the offender, the need for a licence, and the circumstances of the offence.

    Mobile Phone Detection Camera Program

    The implementation of the Mobile Phone Detection Camera Program on 1 March 2020 by the NSW Government is an attempt to decrease road injuries and fatalities by thirty percent by 2021, and eventually to zero by 2056.

    The program commenced on 1 December 2019 and is managed by Transport for NSW. The detection camera incorporates multiple cameras, along with an infra-red flash. This can produce clear vision of vehicles passing by, and the traffic and weather conditions.

    The artificial intelligence in the cameras can review images taken and detect whether an offence has occurred. Images of non-offenders is excluded. Images that demonstrate a possible offence are however verified by trained personnel. The system has strict security requirements that must be adhered to. This means that the remainder of the images, and especially those that detect an image where there is no evidence of an offence, become permanently deleted.

    Protection of Privacy

    There are strict obligations upon Transport for NSW and other responsible agencies to ensure that the personal information of drivers is protected. Only the minimum amount of data that is relevant to the breach and to enforce the appropriate penalty will be retained. All images are reviewed and those that display false detections are irretrievably deleted.

    Images that detect potential offences are partially pixelated and cropped before a full assessment of the offence has been made and a penalty notice has been issued. These notices are generally issued within a week after the offence has been detected.

    Regular audits of the system and of operators are made to adhere to strict privacy requirements.

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