How to Contest a Mobile Phone Fine NSW?
Using a mobile phone while driving in New South Wales is an offence. The NSW Government attempted to decrease road injuries and fatalities by implementing the Mobile Phone Detection Camera Program.
Mobile Phone Use Laws in NSW
Mobile phone laws and mobile phone fines in NSW are harsher for Learner and Provisional licence holders than for full or unrestricted licence holders.
An unrestricted driver’s licence holder in NSW can be found guilty and fined under Regulation 300 of the Road Rules 2014 (NSW) if they are using a mobile phone in a moving motor vehicle or a vehicle that was stationary at the time but not parked. In addition, a driver can be issued a ticket for just holding a mobile phone while driving.
A driver is seen to use a mobile phone in a moving or stationary vehicle when they:
· Turn a mobile phone on or off whilst driving or in a stationary vehicle
· Hold a mobile phone in a moving or stationary vehicle
· Look at anything on the screen of the mobile phone
· Send information or type anything on the mobile phone whilst driving or in a stationary vehicle
· Operate any functions such as calling, sending messages, or using an app on a mobile phone
However, an unrestricted licence driver can:
· Answer calls with a hands-free device
· Answer calls if the mobile phone is in a cell phone holder
· Use a GPS navigation system if the phone is in a cell phone holder
· Answer calls or use a mobile phone if the car is parked off the road with the engine off
The regulations for Learner and Provisional licence holders are stricter. They are not allowed to use or touch their phone at all unless the car is parked off the road. Regulation 300-1 of the Road Rules 2014 (NSW) states that the driver of a vehicle with a learner licence or a provisional P1 or P2 licence must not use or hold a mobile phone if the vehicle is moving or is stationary but not parked.
Learners or Provisional licence holders cannot use Bluetooth or the hands-free function on their phones. They can also not use their phone as a navigational tool, even when it is securely mounted and affixed to the vehicle to be used as a visual display. Any device with Bluetooth capabilities may be considered a mobile phone for prosecution and are therefore subject to the same fines.
Mobile Phone Fines in NSW
Using a mobile phone while driving is a penalty notice offence, and this on-the-spot penalty notice gives the driver the option to pay the fine and incur the allocated demerit points. A driver can contest an on-the-spot penalty notice offence if they are not guilty of the offence or they do not want to incur the demerit points.
Mobile phone fines in NSW depend on several factors:
· If the driver is a learner, provisional, or unrestricted licence holder
· If the matter is heard in a Local court or if the driver will pay a fine
· If the offence was committed during a double demerit period
· If the driver committed the offence in a school zone
The offence of using a mobile phone whilst driving in NSW attracts a fine and demerit points for all driver’s licence holders. The suspension period for unrestricted licences depends on the number of accumulated demerit points:
· 13 – 15 demerit points: three-month suspension
· 16 – 19 demerit points: four-month suspension
· 20+ demerit points: five-month suspension
Learner and Provisional 1 licence holders will lose more than their entire allocation of demerit points within the demerit point scheme. A Learner and Provisional 1 licence holder only have a 4 demerit point limit. Learner and Provisional (P1) licence holders will face a suspension period of three months when they surpass their allocated demerit points. This suspension will also apply to Provisional (P2) licence holders, as all provisional drivers must not use a mobile phone while driving.
The double demerit point scheme also applies to mobile phone offences, and if a driver receives a ticket within the double demerit period, double demerit points will be applied against their licence. Once again, double demerit points are more than the entire allocation of demerit points for Learner and Provisional 1 licence holders.
The following fines or penalties are applicable in NSW for using a mobile phone while driving for unrestricted, learner, or provisional licence holders.
Unrestricted Driver Licence Holders
The following fines for using a mobile phone while driving in NSW are applicable under regulation 300 of the Road Rules 2014 (NSW):
Driving in a vehicle and using a mobile phone when it is not permitted:
· Penalty notice fine of $349
· 5 demerit points
· 10 double demerit points
Driving in a vehicle and using a mobile phone when it is not permitted in a school zone:
· Penalty notice fine of $464
· 5 demerit points
· 10 double demerit points
Learner and Provisional (1 and 2) Driver’s licence Holders
The following fines are applicable under regulation 300-1 of the Road Rules 2014 (NSW):
Driving in a vehicle and using a mobile phone when it is not permitted:
· Penalty notice fine of $349
· 5 demerit points
· 10 double demerit points
Driving in a vehicle and using a mobile phone when it is not permitted in a school zone:
· Penalty notice fine of $464
· 5 demerit points
· 10 demerit points
The police usually issue a penalty notice or a fine when a driver is caught using a mobile phone while driving. However, a driver can elect to have the matter heard in the Local Court in NSW. However rare, a police officer can also issue a driver with a Court Attendance Notice, and this means the matter will be heard directly in the Local Court.
The maximum penalty for using a mobile phone while driving in NSW issued by a court is a fine of up to 20 penalty units or $2200. In addition, Transport for NSW will apply the 5 demerit points to a driver’s licence when the driver is convicted.
How to Contest a Mobile Phone Fine in NSW
A driver can pay the fine and incur the 5 demerit points for a mobile phone fine in NSW, request a review of the fine by writing a letter to Revenue NSW, or a driver can choose to contest the fine for using a mobile phone in Court. If Revenue NSW denies a driver’s request or disagrees with the review, a driver can defend their case in the Local Court.
A driver can take a fine to the Local Court if they haven’t paid the fine and if they act within 28 days of receiving the penalty reminder notice. The driver is required to submit a court election form which is available on the Revenue NSW website, or the driver can apply by writing to Revenue NSW by the due date. The State Debt Recovery Office will send the driver a Court Attendance Notice. The notice will provide the necessary information regarding the location and hearing date.
The cost of going to Court for a mobile phone fine depends on the verdict. If a driver is found to be not guilty, there is no cost payable by the driver. However, if the driver is found guilty, the driver will be required to pay the court costs and possibly the prosecutor’s professional costs.
Elect to Go to Court
A driver can elect to take the penalty notice for using a mobile phone while driving in NSW Court instead of paying the fine. The case will appear before a Magistrate in the Local Court.
The driver has two options and can either enter a plea of not guilty or a plea of guilty.
Pleading not guilty
Mistakes can happen, and if a driver did not commit the offence, they should consider contesting it in Court to avoid the offence being recorded on the driver’s traffic record. The police have to prove beyond a reasonable doubt that the driver was using a mobile phone and that the vehicle was moving or was stationary but not parked.
A driver can enter a plea of not guilty and defend the allegation if they are innocent. If a driver is found not guilty, they will not have to pay the fine, and the charge will be cleared from their record.
Pleading guilty
If a driver has been charged with illegally using a mobile phone while driving and agrees to this charge, they may choose to plead guilty. This is because the driver demonstrates remorse, and they are aware of the offence and its consequences. The Court often views this favourably and might entitle the driver to a discounted penalty. However, a driver will have to pay a fine and lose their demerit points if a driver is found guilty of the offence.
A driver may also be discharged with a no conviction recorded under Section 10 of the Crimes (Sentencing Procedure) Act 1999. This means a driver will not lose any demerit points and will face no suspension or disqualification periods that need to be served. By entering a plea of guilt, a driver can ask the Magistrate for leniency to avoid incurring a fine and demerit points. The Magistrate considers the nature of the offender, the need for a licence, and the circumstances of the offence under a Section 10 discharge.
RMS Licence Appeal
A driver can also decide to pay the penalty notice and appeal the RMS demerit point suspension in Court. If a driver pays the penalty notice for a mobile phone offence, they will automatically incur the demerit points against their licence. If drivers exceed their demerit point threshold limit, they will incur a demerit point suspension. The RMS will forward a letter to the driver when exceeding the threshold limit.
A driver can appeal the suspension of their licence in the Local Court. The driver will receive a court date for the hearing once the RMS licence appeal is filed. The Magistrate can either allow or dismiss the appeal. If the appeal is allowed, the driver will not be suspended from driving and will not incur demerit points. An appeal can be dismissed with or without a variation to the suspension period.
The Magistrate can reduce a driver’s suspension period. If the suspension is varied, the driver will not lose demerit points if they are a P plater. If the suspension is not varied, then the driver will be subject to the suspension period, demerit points, and a fine. Unrestricted driver’s licence holders cannot appeal for demerit point suspensions in NSW.
Possible Defences for Mobile Phone Offences
Having a valid reason to contest a mobile phone fine in NSW is important. There are risks to taking a case to Court, and it is advisable to do so with the guidance of an experienced traffic lawyer. A conviction in Court can lead to higher fines or a criminal conviction. The likelihood of successfully contesting a mobile phone fine in NSW will depend on the driver’s circumstances.
An unrestricted driver’s licence holder may use the following defences for a charge of using a mobile phone while driving in NSW:
· If the mobile phone was in a pocket while driving;
· If the mobile phone received a notification automatically and the notification did not show the content of the communication on the screen of the phone;
· The driver used the phone in a police vehicle or emergency vehicle;
· The driver was using the phone screen as a visual display, or the driver used the phone that was securely mounted to the motor vehicle
· The driver used the phone through a Bluetooth connection in the car without touching or holding the phone
· The driver used a mobile phone while seated in the vehicle, but the vehicle was parked and stationary
Lyons Law Group will assist you with expert advice and guidance when contesting a mobile phone fine in NSW. Contact us today.
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