Do I Have to Be Driving My Car to Be Charged With Drink Driving?

Do I Have to Be Driving My Car to Be Charged With Drink Driving?

The Transport Operations (Road Use Management) Act 1985 (Qld) imposes sanctions where a person who is over the relevant blood alcohol concentration:

(a) drives a motor vehicle, tram, train or vessel; or

(b) attempts to put in motion a motor vehicle, tram, train or vessel; or

(c) is in charge of a motor vehicle, tram, train or vessel.

The offence of being in charge of a motor vehicle is one of a cognate, or like nature offence, of “driving” a motor vehicle whilst under the influence of liquor. There are a number of cases which have dealt with this issue where the accused has reclined the drivers seat and turned the radio on while sleeping off a big night. The court has determined that such conduct makes out the offence of being in charge.

A more significant example of being in charge is the unreported case of Elloy v Noble (15/1987 Townsville, 9 June 1987) where the owner of a motor vehicle allowed another to drive his car. It was involved in an accident and the driver absconded leaving the keys in the ignition. While being questioned by police the Applicant leant against the car. His Honour, Judge Wylie DCJ upheld the conviction and found that the Applicant, by his conduct was “in charge” of a motor vehicle.

In other decisions the Court has held that even where the person is outside the vehicle at the relevant time, where they have recently driven it, or are in a position to drive or attempt to drive the vehicle, they are “in charge” and the offence is made out.

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Section 79(6) of the legislation, provides a defence to the offence of being in charge. It relevantly provides that the court shall not convict a person of being in charge where the person has satisfied the court that at the material time they:

by occupying a compartment of the motor vehicle in respect of which the offence is charged other than the compartment containing the driving seat of the motor vehicle; or

not being in that motor vehicle, by some action;

had manifested and intention of refraining from driving that motor vehicle whilst the defendant was under the influence of liquor or a drug, or as the case may be, whilst the concentration of alcohol in the defendant’s blood equalled or exceeded the blood alcohol concentration.

The decided case require two things to be established: the existence of an intention of refraining from driving while under the influence of liquor of a drug and a manifestation of that intention, by occupying a compartment other than that containing the drivers seat.

It is possible to be charged with drink driving in the colloquial sense not only when you are not driving, but in some cases when not even in the vehicle. The dangers of drinking and driving are well known, but the legal consequences of being in charge of your vehicle whilst intoxicated are equally significant.