Can I be charged for using a phone in a carpark?

Monday , 9, November 2015 Leave a comment


CASE STUDY

FACTS (As Stated by the Victim) :

Police spotted me sitting in car idling in carpark talking on my mobile phone. Police gestured for me to drive onto adjacent road and I reversed into carpark spot.

They parked me in. We all got out of vehicles. They asked me to ‘produce my licence’. I stated that I did not understand the need for their interest. They again stated for me to ‘produce my licence to them’.

I said what does that wording mean. I went to my car and i asked if I may hold my licence. Female officer said yes. So I took out of my wallet and held it steadily in front of said female officer. She slowly reached for my licence and then attempted to snatch it from me.

I held my licence and was told I was under arrest for obstruction. I was placed in hand cuffs, told to sit on pavement (which I refused) and then put into back of their car. Another 2 officers arrived.

They took me to Police Station – fingerprints and photos and then returned to my vehicle. I have had a mention at magistrates court – adjourned until January 2016. I obtained the general brief which clearly does not correlate with the video which my passenger took…..

Apparently, I should not have the brief as the Magistrate told me to collect it after Oct 16th 2015. I will collect it this week. I will represent myself and am hoping to speak with the Prosecutor and explain that this minor matter should not be important enough for the court. 3 charges – mobile phone use 2. contravening requirement to produce licence and 3.obstruction

CLICK HERE FOR VIDEO FOOTAGE

OF THE INCIDENT

I had my handbrake on and motor running when on phone – was not ever on road – they said a carpark is a road related area. Overtly aggressive manner – both officers emptied their hands when I was getting my wallet from car!!! The female officer asked me my name and then asked me again for my licence – not allowing sufficient time for me to answer her initial question. It took them 2.5 minutes to escalate this to handcuffs and not mitigate an obviously distressed member of the general public.

I put my phone down. released handbrake and then reversed into first open car space, effectively parked, keys removed – up against a fence – not attempting to drive away or anything like that which is why I was ‘thrown’ when they Parked Me in – I found that unnecessarily intimidating.

I was stopped – I drove out of carpark – drove 20 meters, stopped with car idling and handbrake on (manual car), used phone – spotted police and put my phone down…..I was Never on road – nor had any intention of driving and using phone

apparently, even though i had handbrake on – keys were in ignition and a carpark is considered a ‘road related area’ in queensland. I asked if they could do the same when anyone makes a call while sitting in their own driveway – I was told yes. I told them that i had anxiety issues raised when they INITIALLY parked me in – I had a fracture at my left elbow which is what caused the majority of pain – escalated when they both tried to put me in their car – one wanted to go passenger side and one drivers side. When in car, I again explained my anxiety and asked them to leave the door open – they didn’t. When the second crew arrived, they opened the door. Funnily enough the female officer kept saying ‘i think you do understand’ and they only drove me away after i said ‘of course i understand, you are overstepping the Law by using whatever legislation you need…..ie i htink they NEEDED ME TO SAY “I do understand” in front of other officers. One was SO polite!!

they asked my name – i gave my first name! She then explained that i needed to give my name and or produce my licence. at NO time did she ask for my FULL NAME – I am bilingual AND a performer who, by habit, Rarely give my Full Name unless asked for it…..this all happened SO quickly and the snatching of licence etc etc seemed rather premeditated (upon watching video) as they Both emptied their hands as I was obtaining my wallet

Best Answers :

The ruling in DPP v Kaba affirmed the right to stop and check but in terms of identification it is limited to name and address not necessarily licence (you can be fined if a P Plater driving without a licence and if a full licence holder you can be summoned to present it within 7 days) so the licence is not basis. As for the Phone use I would contest it, if you are not on a road and just in a carpark not driving then it is not consistent with the purpose of the legislation (could be in conflict with it even as you are encouraged to pull over to take a call).

On the Issue of drivers licence they can ask if reasonably necessary but if “A person who holds an open driver licence issued under the Road Use Management Act but is unable to comply with the requirement immediately may comply with the requirement by producing the licence to the officer in charge of a nominated police establishment or police station within 48 hours after the requirement is made. That is 58 (3) so clearly from the video that was the trigger of the arrest so they exceeded authority.

Here it is for Victoria

(1) The driver of a vehicle who is not a learner driver or the holder of a probationary driver licence must not use a mobile phone while the vehicle is …

See More
ROAD SAFETY ROAD RULES 2009 – REG 300 Use of mobile phones
(1) The driver of a vehicle who is not a learner driver or the holder of a probationary driver licence must not use a mobile phone while the vehicle is moving, or is stationary but not parked,..

Relevant Legislation :

1. POLICE POWERS AND RESPONSIBILITIES ACT 2000 – SECT 58

2. ROAD SAFETY ROAD RULES 2009 – REG 300 Use of mobile phones

 

 



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