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Wednesday, 9 February 2011

Driving to distraction

Edit: No surprises in the SA Supreme Court decision of Savage v Police [2011] SASC 13, reported as though it was news here. The decision was more about a magistrate's discretion to award a conviction. The issue of merely using a phone to check the time was dismissed immediately, with reference to Kyriakopoulos v Police [2006] SASC 71.








When the Road Rules 2009 came in the rule-makers had significantly changed the rules about using a mobile phone when driving. Rule 300 became much longer and more detailed. It was clearly the intention to make use of a hands-free kit legal, while almost any other use of a phone while driving remained an offence.



News reports this week carry Monash University Accident Research Centre findings that hands-free isn't that much safer than hand-held mobile phone use. The Draft National Road Safety Strategy for 2011 - 2020 reportedly floated a total ban on mobile phone use behind the wheel, but it's already been ruled out.



There's nothing new in this information. A MUARC report from 2003 reviewed the available literature and identified a number of studies that found hands-free phones were not, or were only a little, less distracting than actually holding the phone. Programming a sat-nav system was found to be one of the most distracting tasks a driver could perform. One study quoted eating and drinking as being more statistically dangerous than using a mobile phone.



This raises the question of whether a driver could be prosecuted for inattention when using a hands-free mobile phone (for example, where they have an accident). Rule 300(1) offers a defence to the offence created under rule 300, but not to offences under rule 297 (driving a vehicle without proper control) or under s 65 (careless driving) of the Road Safety Act 1986. (Or, to pick the most extreme example, culpable driving under s 318 of the Crimes Act 1958).



It could be argued that legislators have created a misleading impression of safety by making hands-free use specifically legal, where the previous law was unclear. But is this like claiming its okay to speed because of the 10% leeway permitted for speedometers in the standards for roadworthiness? (The argument swiftly dismissed by the SA Supreme Court in Police v Van Reesma [2010] SASC 201.)

4 comments:

Melbourne Lawyer said...

You are right. Anybody being questioned by the police should think carefully before supplying information about their mobile phone (whether or not they get the caution they are entitled to under 139 of the Evidence Act).

Anonymous said...

The research I have read is that mobile phones are dangerous largely because of the driver's engagement in conversation with someone who is not in the car with them.

Conversing with a passenger in the vehicle isn't dangerous because the conversation will naturally ebb and flow in accordance with the dangers and hazards that the road presents (which both passenger and driver are aware of). The passenger won't expect conversation going into a tricky round about for example.

A conversation with a person not in the car is more demanding (whether on handsfree or handset), because they are unaware of the hazards the driver is facing. They will talk to the driver at inappropriate times. Equally, the driver will feel compelled to talk when negotiating hazards because they know the person they are speaking to cannot see the hazard they are negotiating.

Habeas Corpus said...

The County Court will be hearing the 10% ADR speeding argument from a Victorian traffic cop today:

http://www.dailytelegraph.com.au/news/national/police-officer-challenges-speeding-fine-in-county-court/story-e6freuzr-1226003385329

The story doesn't say whether he has a lawyer or not.

Habeas Corpus said...

He got off, but not with the 10% argument.

http://www.heraldsun.com.au/news/victoria/police-officer-challenges-speeding-fine-in-county-court/story-e6frf7kx-1226003982136

and

http://www.heraldsun.com.au/news/victoria/police-officer-challenges-speeding-fine-in-county-court/story-e6frf7kx-1226003271169

"Judge Lacava said the Federal design laws did not seek to 'enter the field' of state speed limits and the there was no legal conflict."