NSW Mobile Phone Charge for Listening to Podcast - Help?

Discussion in 'Traffic Law Forum' started by tracey2018, 22 April 2019.

  1. tracey2018

    tracey2018 Active Member

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    I was initially pulled over for speeding, 66km in a recently changed 50 km zone and I will accept this but the officer then looks into my car and tells me he will be back to discuss my phone, that is sitting in a cradle. What's he on about?, I say to myself.

    What's going on there with your phone, what are you watching?

    I'm not watching anything, I'm listening to a podcast, I said. Not allowed, he said. It's playing through my Bluetooth, I said.

    "Your screen in moving," he said. I'm listening just like a radio I told him.

    The only thing moving on my screen was the soundwaves visuals of the podcast. There is no video playing. Comes back 3 points for speeding, 5 points for using a mobile phone and an extra ticket because I couldn't find my drivers licence.

    I tried to appeal and it was not successful. Their reply was just a basic generic explanation about phone use...

    I feel hard done by the game of thrones podcast has got me a ticket. What are my chances of fighting the "use mobile phone" in court under traffic law?
     
  2. Tony Danos

    Tony Danos Lawyer
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  3. tracey2018

    tracey2018 Active Member

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    Hello...I'm in NSW
     
  4. Adam1user

    Adam1user Well-Known Member

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    You may want to fight it, but I say you have a long shot. Do you have any proof that there was nothing playing on your mobile? (Not just your word), as it will be your word against the police officer. Did you explain to the officer that what he saw is the sound wave? If not, then you have a long shot, and not having your licence does not come to your advantage.

    You may need to fight it but I don't think you have a good chance, in NSW, the road rules are hard on mobile phone usage. Speeding infringements are also a big No No, and as I said, you did not have your licence with you, this is another issue (which shows that you don't have responsibility), these are coming against you.

    I may be wrong, but the only way to find out is to go to court and you need legal advice.
     
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  5. tracey2018

    tracey2018 Active Member

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    Like I said, I take responsibility for the speeding ticket, I wasn't aware the speed had changed in the past few months, it's not an area I frequent. I have not been booked for speeding in 11 years. My job requires me to drive between 5-6 jobs per day, so I spend a lot of time behind the wheel.

    Plus I couldn't explain anything to this officer, he was on a mission and I did have my licence with me, I just couldn't find it when he asked for it. So please don't say I'm an irresponsible person. I'm just looking for some help and clarification. Looking at a visual on the phone in a cradle(which wasn't) is 5 demerit points but looking at a Visual display unit (which a smartphone is) is 3 demerit points.
     
  6. sammy01

    sammy01 Well-Known Member

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    It is how it looks - it is much easier for the prosecutor to make it look like you were irresponsible. After all the cop got you for 3 different things.
    My advice - suck it up - your word vs a cop... You're on a hiding to nothing.

    My advice cpt 2 - put the phone in the cradle with the face away from you. I drive with my phone attached via an audio cable to the radio so I can listen to audio books. I leave the phone face down on the passenger seat. I got questioned on a random breath test and was advised that the best bet is to have the bloody thing on the ground, or so far out of the way that it would be hard for a cop to 'claim' I was using it... BUT the copper (got a good one) did tell me that anything that looked like using a phone while driving was gonna have the potential to cause troubles....

    These days I have learnt to bluetooth, so phone is put in the console - so it can't be seen.

    Mate you've lost 8 points - you had 11. You still have 3. So don't take it to court. BUT a letter to RMT given your otherwise clean record, might be worth a try. A little bit of grovelling is worth a shot.
     
  7. Adam1user

    Adam1user Well-Known Member

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    My apology, I did not mean you are an irresponsible person, I stated it "shows" which mean it was at that time how the police officer thought {maybe I should have used other word, but I answered quickly} . I was not there. My answer was based on what your wrote. I gave you my opinion as a third party. I am not here to judge you or insult you in anyway, if you read my answer it shows clearly that I am not attacking you and I was asking questions to see if there is something to assist you if you decide to go to court. As sammy01 stated, if you have a good clean record, you may want to take it to court (long shot! as you have 3 infringements), from my experience, the two things that get rejected in court are: speeding infringements and red light infringements, and now mobile phones usage will be added. I went to court on 3 cases and I got off on 3, it was because the circumstances were against me at that time and not because I am perfect.
     
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    #7 Adam1user, 23 April 2019
    Last edited: 23 April 2019
  8. tracey2018

    tracey2018 Active Member

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    Its all good... I was only ever going to contest the "use mobile phone" ticket even though I haven't been caught speeding for 11 years. I had 3 demerits which expire in November. To lose 8 demerit points in one hit hurts especially since I've started a new job that involves driving. I will be seeking legal advice and may be try and get it downgraded to improper use of Visual Display Unit which is 3 demerits instead of 5. Hard to believe I lose 5 points for listening to a podcast. A hard lesson.
     
  9. Atticus

    Atticus Well-Known Member

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    Been following with interest... My 2 cents.. I doubt you could argue a downgrade on the basis of the phone being a VDU.. The fact is it's a mobile phone..

    That said, personally I would take it to court and argue that you did not breach any law.. I found this, (which you may have already seen)...

    4. Can I listen to music on my phone if it is in a cradle?
    Yes, if you have a full unrestricted licence. You can use the audio playing function of a mobile phone as long as the phone is secured in a mounting fixed to the vehicle and doesn’t obscure your view of the road, or the phone can be operated without you touching any part of it, such as via Bluetooth.

    Source .. Know the rules - Mobile phone use - Staying safe - NSW Centre for Road Safety

    Assuming this is current , AND the officer confirms that you were listening to a podcast via Bluetooth, and the phone was in a cradle, I can't see how you could be charged with an offence, a podcast being a digital audio file..

    I guess the thing is, WILL the officer confirm it or say he believes you were watching a video?.. If he says he believes you were watching a video, then your word against the police is not going to work.
     
  10. tracey2018

    tracey2018 Active Member

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    I will be seeking advice of a lawyer because the officer said that he saw me look at it (like really want to watch zigzags on my phone screen) when in fact I was checking the time because I wasn't sure if I had passed a school zone area and thats why he was stopping me. He could have given the ticket for speeding and given me a caution about my phone that was sitting in the cradle. I just havn't got the gift to talk my way out of anything.


    Has anyone ever been successful with a written notice of pleading?
     
    #10 tracey2018, 26 April 2019
    Last edited: 26 April 2019
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