• Alyce Cooper

Calling all p-platers, but don’t touch the phone – the rules around mobiles explained

Alyce Cooper, our Hawkesbury-based legal expert, lays down the law…

My friend’s daughter - who is on her P-plates - was charged by police recently for using a mobile phone. Bizarrely, it was not her, but her passenger who was using Bluetooth through the phone to play music, but the police still charged the driver.

Now, we all know you can’t use a mobile phone while driving. But what does that mean exactly? Let me break it down for you and then you’ll see why the young P-plater was charged and find out how we can all avoid being fined for improperly using a mobile phone while driving.

For unrestricted licence holders – so those of us with a full licence - the Road Rules say a 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 call (this does not include video calls, emails, or text messages) or to perform an audio playing function AND the phone is properly secured in a mount OR is not secured but the driver will not need to press anything on the phone or manipulate any part of the phone.

· or the phone is being used as a driver’s aid (i.e. for navigation) AND is properly secured in a mount.

But for L or P-plate licence holders, Regulation 300-1 of the Road Rules says:

The driver of a vehicle (except an emergency vehicle or police vehicle) who is the holder of a learner licence or a provisional P1 or P2 licence must not use a mobile phone, whether or not held by the driver, while the vehicle is moving or is stationary but not parked.

Sounds clear enough, until you start looking into the definitions in the Rules.

"held" includes held by, or resting on, any part of the driver's body, but does not include held in a pocket of the driver's clothing or in a pouch worn by the driver.

"use" includes any of the following actions by a driver:

· holding the body of the phone in her or his hand (whether engaged in a phone call or not), 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.

The difference for L or P-plate licence holders, is that the legislation applies even if the driver is not holding the phone.

Even if the phone is properly mounted, you might still be in trouble...

And there is no exception if the phone is properly mounted. What this means is that the driver cannot use Bluetooth or “hands free” on a phone. They also cannot use a phone for navigation purposes.

The matter involving my friend’s daughter was taken to Court and it was ultimately dismissed as the Magistrate felt that the driver was not ‘using’ the phone as outlined in the Rules. Interestingly though, the Prosecutor said the fine had been issued correctly. Surely not!

Any driver in NSW can be fined with demerit points if the passenger is using a mobile phone if the image or screen from the phone is visible to the driver or is likely to distract another driver, according to rule 299 of the Road Rules.

So when can an L or P-plate licence holder use a mobile phone?

They must have the vehicle parked and out of the line of traffic. The ignition does not need to be turned off.

Alyce Cooper is the Principal Solicitor at AKC Legal. Ms Cooper specialises in traffic law, criminal law, civil law, family law, Estate Planning and Probate matters.

The contents of this article should not be construed as specific legal advice to any individual reader’s situation. If you would like legal advice tailored to your situation, please contact AKC Legal on 0401 451 322.

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