Using your mobile phone while driving – What is the law?

Section 3 of the Road Traffic Act 2006 made it an offence to hold a mobile phone while driving. This is a fixed charge offence of €60 (€90 if not paid within 28 days) plus 2 penalty points (4 if convicted).

What is a mobile phone?

The definition of mobile phone is a portable communication device, other than a two-way radio, with which a person is capable of making or receiving a call or performing an interactive communication function. This could therefore technically refer to an iPad or tablet also.

An ‘interactive communication function’ includes sending or receiving oral or written messages, faxes, still or moving images, or providing access to the internet.

Holding a mobile phone

To hold a mobile phone actually means not only holding the phone by hand, but also supporting or cradling it with another part of the body. So resting your mobile phone on your lap while on ‘speaker’ is in fact included in the offence.

New regulations

The loophole that existed was the ability to send text messages while your phone was in a cradle or hands-free device. This loophole has now been closed as of 1 May 2014 with a new offence of sending or reading a text message from a mobile phone while driving. A text message includes SMS, MMS and emails.

To read a text message means to access or open it, other than by voice-activation. To send a text message includes composing and typing, but does not include anything done without touching the mobile phone. Therefore reading or sending text messages solely by voice commands is technically not an offence under these regulations, however one would always need to be mindful of other offences, including careless driving.

The current penalty is a mandatory court appearance where a judge will decide what financial penalty the motorist should face. If convicted, the judge can fine the motorist a maximum of:
• €1,000 for a first offence
• €2,000 for a second or subsequent offence
• €2,000 and/or up to three months in prison for a third or subsequent offence within a twelve month period.

Current position

The Department of Transport, Tourism and Sport has published an Information Note which clarifies that the new regulations apply to mobile phones which are not being held. Therefore if you are holding a mobile phone while driving, to include cradling or supporting it by any part of your body, you will be charged with the fixed charge offence of €60 and 2 penalty points. If your phone is sitting in a hands free device and you touch it to read or send a text you will be subject to the new regulations.

The information note also clarifies that it is not an offence to speak via a hands-free device or to touch a button on a hands-free device in order to answer a phone call.

Should you have any queries in relation to any of the above please do not hesitate to contact Máirín O’Boyle-Finnegan or your usual contact at Partners at Law.

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