Use of a mobile phone while driving

It is against the law to use a mobile phone while driving, this includes:

• holding the phone in your hand even if the phone is turned off. However, you can hold the phone in order to give it to someone else in the vehicle
• placing anything into the phone. For example, plugging in a charger
• sending or looking at anything that is in the phone
• turning the phone on or off
• using the camera, internet browser or any other function of the phone.

Driving includes when you are stopped at traffic lights or stuck in heavy traffic.

Holding the phone means having it in your hand or resting it on any part of your body. However, you can have the phone in your pocket.

A learner or P-plater must not use a phone at all while driving.

Rules about mobile phones also apply to cyclists and people riding other transport like electric scooters and ‘hoverboards’.

Even though this offence is considered a minor traffic matter, you may still have to appear in court if police also charged you with other offences or if you choose to take the matter to court instead of paying the fine.

Going to court

Help before court

If you have a court date in the future, you may be eligible to get help to prepare before you go to court. You can request help online.

If you have been charged with using a mobile phone while driving you may have to go to court. Whether you are guilty depends on the exact facts and circumstances of your case. Look at the ‘Details of the charge’ in your charge sheet to see what the police officer wrote about your offence. The magistrate refers to this in the courtroom.

The prosecutor is the police or other authorised officer who argues the case against you in the courtroom. The prosecutor has to prove three things:

• you were in the drivers’ seat of your vehicle
• you were driving or not parked (this includes being stopped in traffic)
• you were ‘using’ a mobile phone in the ways described above.

What are my options if I have to go to court?

Plead guilty

If you agree that you broke the law, you should tell the court that you are pleading guilty. During the court hearing, the prosecutor will read out the statement of alleged facts. The magistrate will find you guilty and give you a penalty.

If you plead guilty the magistrate treats this as a sign that you are co-operating and may give you a less severe penalty.

For more information visit our page Going to court – pleading guilty.

Plead not guilty

If you believe that you did not break the law, or you disagree with what is in the statement of alleged facts, you must tell the prosecutor ahead of your court date that you plan to plead not guilty. They will hold a summary case conference with you before your case is heard in court. If you still want to plead not guilty after the conference, tell the magistrate. The magistrate will adjourn (put off) your case for another day.

You will come back to court for a contested hearing. When you come back the magistrate listens to evidence from you and the police before making a decision. You should have a defence. Saying that you did not know you were breaking the law is not a good enough defence.

If you are pleading not guilty, get legal advice before the contested hearing.

For more information visit our page Going to court – pleading not guilty.

Possible defences

You will have a defence if you were legally parked.

You will have a defence if you were using your phone in a legal way. The only time you can use your phone in a legal way is if you are doing all four of these things:

• you are on your full licence
• you are making a phone call (not texting), or you are using the navigation system
• the phone is properly mounted in the car
• you are using a hands-free device properly (you do not need to hold or touch the phone).

The phone must be mounted on a device that was made and sold for the purpose of using the phone hands-free. For example, putting your phone on the dashboard is not the same thing as the phone being properly mounted.

Can I adjourn my hearing?

You can ask the magistrate to adjourn (put off) your case if you have a good reason. For example, to get a lawyer.

What are the penalties if I am found guilty?

Demerit points

VicRoads adds four demerit points to your licence from the date the offence happened, not the date you went to court. The magistrate cannot change this.

Losing your licence

The magistrate may cancel or suspend your licence for a certain amount of time. You should not drive at all during this time. There are no exceptions. For example, you cannot drive to work or to pick up your children. There are no special licences that allow you to drive some of the time. There are very serious penalties if you drive when your licence is cancelled or suspended.

Usually a magistrate would only suspend your licence if you committed other offences at the same time or if you have a bad driving record.

Fines

The magistrate may give you a fine. You can get up to 10 penalty units for using a mobile phone while driving.

You should tell the magistrate about your income and things you have to pay for, and whether you support a family.

If you get a fine you can pay it straight away at court. If you do not pay the fine straight away, Fines Victoria will send you a Court fine collection statement. This will tell you how much you owe and when the fine is due.

You can ask Fines Victoria for a payment plan if you cannot afford to pay the fine in one payment.

If you do not pay the fine when it is due, Fines Victoria may increase the fine. The court can issue a warrant for your arrest.

Other penalties

The magistrate may also place you on an undertaking to behave well for a certain amount of time. An undertaking is a promise to the court not to do certain things.

Criminal record

If you are found guilty what happens in court goes on your criminal record.
This includes:

• the finding of guilt
• a conviction if there is one
• penalties.

For more information visit our page on Criminal records.

Can I appeal the magistrate’s decision?

Yes. If you do not agree with the decision you can appeal to the County Court. You have 28 days to do this. Get legal advice before you decide. You could get a higher penalty.

Other support

For more information, support and referrals, visit:

• Help at court
• Other support for going to court
• Other support for traffic offences
• Other support for fines and infringements.