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  • Writer's pictureSam Kuhn


In Queensland, a person can be charged with a drink driving offence despite their car being stationary or turned off.

This is because under the Transport Operations (Road Use Management) Act 1995, a person can still be ‘in charge’ of a vehicle even if the engine is off.

Consequently, many people who have been in their car, either sleeping off a big night or waiting for a ride home, have been charged with drink driving because they have access to their car keys and are intoxicated beyond the legal driving limit.

To make matters worse, those charged often have a high blood alcohol concentration (BAC), which can result in them losing their licence for over six months.

This penalty seems disproportionate, especially when those charged appear to be acting responsibly by not driving.

Fortunately, the legislation has codified certain situations which provide these people with a defence to being “in charge of a motor vehicle”.

Pursuant to s 79(6) of the Act, it is a defence if it can be proved, beyond reasonable doubt, that:

1. The person had manifested an intention to refrain from driving by:

a. Occupying a compartment of the motor vehicle, other than the compartment containing the driving seat; or

b. Not being in that motor vehicle, by some action; and

2. The person was not too intoxicated to the extent they are able to understand what they are doing, so as to be able to form an intention to refrain from driving; and

3. The vehicle was parked in such a way as not to constitute a source of danger to other persons or other traffic; and

4. The person has not previously been convicted of another drink or drug driving offence in the one year prior to being charged.

This defence was recently tested in the Mackay Magistrates Court in the case of Queensland Police Service -v- Murray [2021] QMC 5.

Mr Murray was found asleep in his vehicle at around 1:00am and recorded a BAC of 0.168% (which is above the high range limit).

When police approached the vehicle, it was stationary on the side of the road, the ignition was on, and the headlights and right hand indicator were operating.

Mr Murray was lying in the fully reclined, front driver’s seat. This meant his body was in two compartments of the vehicle – the driver’s compartment which contained his lower body, and the right rear compartment which contained his head and chest.

Mr Murray had been at a co-worker’s home celebrating the end of a five week shift. Mr Murray knew he would be over the legal limit to drive and did not believe he could stay overnight, so he decided to sleep in his car.

Ultimately, His Honour Aberdeen acquitted Mr Murray of the charge as “by his actions, Mr Murray manifested the intention, by overt acts, to refrain from driving his car until he was sufficiently sober.”

It remains unclear whether the prosecution intend to appeal the decision.

Regardless, we believe that people who know they are over the legal BAC level and take reasonable steps to ensure that they do not drive, should not be punished.

However, if you do intend to sleep in your vehicle after a big night, you should take the following steps to ensure you are not inadvertently charged:

1. Ensure your car is parked in a safe location;

2. Do not move your vehicle if you have already been drinking;

3. If possible, sleep in the backseat; and

4. Leave your car keys at a friend’s house.


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