Bicycle Infringement Notice / Letter of apology received

My husband received his letter of apology from the State Debt Recovery Office (SDRO) a few days ago (see attachment) regarding his infringement notice which he received while bicycling.

Since my husband hasn’t received a traffic penalty for over 20 years, we have no experience of appealing traffic infringement notices. The following is based on what we subsequently learnt which help others we want to contest traffic penalties. (I'm also attaching our letter to SDRO.)

Penalty Notice and then Court? Not necessarily.

When issued with your penalty notice you have 21 days to pay the fine or lodge an exception and then (we assumed) you go to court if you want to contest it.

Wrong!

There is an intermediary step.

State Debt Recovery Office.

You can appeal the process (online) via the State Debt Recovery Office (SDRO). In spite of its claim that about 95% of claimants get rejected, don’t let this deter you!

You have to fill in the online form. Note i. You need to summarise your appeal in 700 CHARACTERS (not words). You can then attach your letter of appeal as a pdf which can be as long as you like.

Finding fault with the Penalty Notice

Question [if applicable] the competence of the policeman filling out the form. Look for incorrect word usage e.g. ‘driving’ not ‘riding’ (or the verb ‘use’ when ‘hold’ more appropriate) or other factors noted on the form; e.g. in this case the policeman wrote that my husband had also lost 3 demerit points on his car license which seemed nonsensical given he was cycling at the time.

If it doesn’t make sense question it.

If you can, get the opinion of another policeman.

Day St Traffic Unit (Police Station)

If booked within the city of Sydney, call this police station and speak to the traffic dept. Raise issues which concern you about the penalty notice. Note everything about this conversation: the rank of the policeman. Time/date. Add this to your letter.

Issuing a penalty notice instead of giving a caution

Question: was it reasonable for the policeman to issue the infringement as opposed to giving a caution? If not, use this as another reason for objecting. I found out that the same policeman cautioned a young female cyclist who ran a red light which seemed far more serious an offence than holding a wallet containing a mobile phone.

Your driving licence

If you have a clean driving record (i.e. a clean driving record for 10 years), you can use this as a reason for being let off. The SDRO has a box you ‘tick’ when you complete your online application.. Easy! i.e. you don’t need to get your licence history (via RMS as we thought) and nor is this something you’d need to bring up with the magistrate.

Obtaining video footage

Don’t think that you are entitled to view any video footage the police may have recorded because you are not. if the footage is introduced as evidence  and the matter goes to court then you will be allowed to see it, but not before, as far as we’re aware.

The laws used:

NSW Centre for Road Safety > Staying safe > Mobile phone use > 

http://www.police.nsw.gov.au/__data/assets/pdf_file/0009/197469/NSW...

http://www.legislation.nsw.gov.au/maintop/view/inforce/subordleg+75...

http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s52a.html

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Hi Pip.  Apologies for being out of the picture but what was his alleged offense?

Not at all! Infringement notice said, "Driver use mobile phone when not permitted to do so". 

So he was holding his mobile phone but not using it?

Yes. He was holding it in its holder (it's dual function wallet/iPhone holder) in his left hand with it on the handle bars, if that makes sense.

Kinda sounds like the officer applied the motor vehicle  rule that the phone needs to be not held

Alright!

:-)

The actual law criminalizes using, not carrying.  The only subtle detail is that a phone like the iphone that automatically displays text content when locked can constitute using when it shows a text if you happen to be holding it when driving.

The issue is that you and the officer are going to agree you used the phone, and that using the phone is potentially an offence, but the photo itself can demonstrate you were either dismounted or in a parked position (ie off the bicycle path), either way magistrate will toss it.  If you take it from the traffic light queue, or you take it from the bike path itself, mounted, then the photo would have sunk you, ie you can't legally use the phone when just stopped, have be parked or converted yourself to a pedestrian.

I presume the SDRO doesn't want you to go to court with a dice roll on evidence they can't review without a court case being started.  If the police hold the evidence then its lot easier for them to let it through to court.

For various reasons mostly to do with shit-that-does-not-work I am over carrying a phone.

Just a camera, which of course I can use when and where I want.

Interesting, the law we were pointed to (Centre for Road Safety in the FAQ section) says:

"

1. Can I hold and use my phone when waiting at traffic lights, or s...

"No. It is illegal to hold and use your phone at any time while driving or riding. If you want to hold and use your phone your vehicle must be parked out of the line of traffic."

However, we still queried the 'use' of the phone as he wasn't. And this is a particular question, about a particular situation, too.

This seems to go beyond the Road Rules, which say (300) that you can use your phone, (includes camera), if parked. Parked is only defined (in the Dictionary) as being stopped, it doesn't say off the road (or path). Anyway I am going to be a bit wary of using my phone camera when stopped on a road or path, to take a picture of a pot hole or a "facility of the week", or cyclists on a group ride etc.

Yes. Well, in fact he'd just photographed a policeman on Kent St as he wanted to post this onto the "Sydney Helmet Cops" warning about police! 

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