I have received an infringement notice for using my mobile phone while driving, what exactly does use mean?
Use, in relation to a mobile phone, means hold the phone in the driver’s hand, or rest the phone on any part of the driver’s body;-
whether or not the phone is on or operating; and
whether or not for the purpose of operating the phone or a function of the phone; and
whether or not the phone is partially or wholly supported by another part of the driver’s body or another thing.
The driver of a vehicle must not use a mobile phone while the vehicle is moving, or is stationary but not parked.
What if I was just using my phone quickly to find something?
It depends on how the phone is positioned. It is permissible to use the phone if the phone is in a cradle or mounting, but not if it is held in your hand or resting on any part of your body, regardless how quickly you check the phone.
What are my options for dealing with the infringement notice?
Generally speaking, you are given 28 days to decide to:
Accept liability for the offence and pay the fine;
Submit a declaration if you were not the driver ; or
Elect to contest the matter in court.
How do I contest the infringement notice?
If you are considering disputing a fine, Queensland Transport’s website provides some useful information on the steps you need to take.
You must dispute a fine within 28 days of the date of the infringement notice or you will face penalties for an overdue fine. If you wish to contest your infringement notice, do not pay the fine and keep a copy of the infringement notice for your records.
You will not receive a mail reminder to pay or dispute your fine, so make sure you diarise the due date.
If you don’t pay or elect to dispute your fine within 28 days of the date on the notice:
the State Penalties Enforcement Registry (SPER) may take enforcement action to recover the amount of the fine, including additional referral fees, from you; and
demerit points will be added to your traffic record from the day the offence was committed.
Taking into account the camera systems now in place for the detection of mobile phone use while driving it significantly increases the difficulty of contesting these matters in court.
How much will it cost to contest the infringement notice?
The costs of legal representation can be substantial, for example, the legal costs of defending a fine at a contested court hearing could be upwards of $3,000. This cost can fluctuate depending on your instructions and the time that needs to be spent preparing your matter. In just about all traffic matters the costs of fighting the infringement will be significantly higher than the infringement itself.
An important factor to keep in mind when deciding whether or not to contest the infringement is the costs involved. Having a lawyer there is just one of the potential costs. Of course, you do have the option of representing yourself. You should be aware that if you are unsuccessful at court, you will be required to pay the offender levy, your fine (which the court has the power to increase the amount shown on your initial infringement notice), and possibly the costs of filing the complaint and summons. You may also be liable to pay the prosecution's costs if for example, they are required to bring in an expert witness to prove their case. These costs can add up and may include the persons time, transport and accommodation costs.
I want to pay the fine, what happens if I have now accumulated too many demerit points?
If you get 12 or more demerit points within a 3 year period on a Queensland open licence, or 4 or more points in a 12 month period on a provisional licence, you’ll be sent an 'Accumulation of demerit points – notice to choose'.
This Notice to Choose will require you to choose to either:
have your open licence suspended for a requisite period; or
agree to continue driving under a period of good driving behaviour for 1 year.
For more information about a Notice to Choose, visit this link. If you don’t respond within the nominated time your licence will automatically be suspended for the requisite period.
I am worried that more infringement notices could be issued for offences pre-dating my good driving behaviour period, will I lose my licence?
It is possible that there can be delays with the issuing of infringement notices.
Unfortunately delays in the issuing of infringement notices are beyond your control. As with any infringement notice, you have the option of paying the fine and accepting liability, or electing to contest in court.
Despite these delays, your licence should not be suspended if the offences pre-date the commencement of your good driving behaviour period.
What if I use my mobile phone while driving during my good behaviour period, I receive a further infringement notice and decide not to contest?
Your licence will be suspended.
If you are concerned that you or your family will suffer severe financial hardship as a result of the loss of your licence, you might be eligible to apply for a special hardship order. It is critical that you seek legal advice if you are in this position.
Should you require legal advice about your offence, or your ability to keep your driver licence, you can hire us to meet with you, review your paperwork and provide advice on your licence options. Please contact us and we can provide an estimate of our costs of advising and representing you in relation to a licence application.
Mobile Phones and Driving
Queensland Traffic Lawyers
(07) 5532 3133
Gold Coast Office
44 Davenport St
1/420 George St