Imagine a situation where you have driven around to the pub, had a few too many to drink and decide that you don’t want to risk driving home and so you sleep it off in the car while you sober up. If you thought that you would be doing the right thing, think again! You may in fact be liable for the offence of being in charge of a motor vehicle while there is alcohol in your system.

Section 79 of the Transport Operations (Road Use Management) Act 1995 creates the offence of driving etc. while there is alcohol in your system. Driving relates to driving and the ‘etc.’ relates to a person attempting to put into motion or being in charge of a motor vehicle.

The offences of driving and attempting to put into motion a motor vehicle are intuitively understood. It is uncontroversial to the average punter that driving or trying to drive a car while drunk is antisocial behaviour which should be avoided and addressed by law enforcement.

What is less clear to the average driver is the scope of the idea of being in charge of a motor vehicle. The law currently provides that any person who appears, acts or behaves as the driver or person having custody, care, or management of any vehicle shall be presumed to be the person in charge of the vehicle. This applies even in circumstances where the person said to be in charge is unaware that it is impossible to drive the vehicle.

What this means is that if you have had a few to drink and are anywhere near a car that you believe you could drive if you wanted to, then you may be charged with the offence of being in charge of that vehicle while there is alcohol in your system.

If the court finds that you were in charge of the vehicle while there is alcohol in your system there are circumstances where they are not to convict you provided by section 79(6) of the Transport Operations (Road Use Management) Act 1995.

These circumstances are:
1. You need to have either not been in the driver’s compartment of the vehicle, or been outside the vehicle at the time of the alleged offence;
2. You need to prove that you were either not in the driver’s compartment or the car at all because you had formed an intention not to drive and not for some other reason;
3. You need to show that you were not so drunk that you could not have formed the intention not to drive;
4. The car has to be parked safely; and
5. You can’t have been convicted of an offence relating to driving etc. while there is alcohol or drugs in your system for at least a year prior to the date of the charge.

As is apparent the law is complex and structured in a way that makes it difficult to rebut the presumption that the offence is being committed.

We can assist you with sort of offence by writing to Police Prosecutions to request that they withdraw the charge on the basis that it is not in the public interest to charge people who are ‘sleeping it off’. If they do not withdraw the charge then we can represent you in court and make submissions that the Court should not convict you of the offence.

If you require legal advice in relation to a vehicle offence involving liquor or other drugs, the team at Ryan Murdoch O’Regan can assist you.

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This article is for your information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied on as legal advice. You must seek specific advice tailored to your circumstances.